Page:The Green Bag (1889–1914), Volume 25.pdf/212

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PANAMA CANAL TOLLS IN THE LIGHT OF MUNICIPAL LAW PROFESSOR Eugene Wambaugh has thrown new light on the Panama Canal law by considering the exemption of coastwise shipping from tolls with respect to the doctrines of the common law as regards public callings.1 He points out that a person who builds a private railway on his own land has the right to exclude all persons from using it and may exact such com pensation as he sees fit for its use, but as soon as he announces that it is open for public travel the law imposes upon him peculiar duties, of which three may be specified, the duty of serving all comers, the duty of serving all comers on the same terms, and the duty of charging only a reasonable rate. Furthermore, a railway owned by the government would be subject to the same obliga tions as one owned by a private individual or corporation, for the state is created for public service exclusively, and while the state cannot be sued, "the absence of a remedy cannot blind anyone to the fact that a state owes duties." The United States cannot be sued in any court and there is no means known of enforc ing an obligation of this character, but the United States, in entering upon any business belonging to the class of public callings, assumes as matter of principle all the duties which rest upon any other ' "A Point that Senator Root Omitted." —Boston Transcript, Feb. 8, 191.3.

conductor of similar undertakings. Thus independently of treaties, One reaches the conclusion that by the rules of law observed in the United States and England the United States, whenever owning a public canal, is as a matter of principle under the duty of permitting the canal to be used by all comers, and at rates which do not discriminate, and at rates which are reasonable. But Professor Wambaugh is not con tent to stop at this point; to do so might give a too strongly speculative turn to his discussion. He goes on to show how, though a nation is bound by these duties in the absence of a treaty, the chain of documents leading up to the Hay-Pauncefote treaty show clear recog nition of the duties which pertain to all public callings and are to be construed in the light of the Anglo-American sys tem of law, which furnishes the natural and necessary introduction and commen tary for any treaty between Great Britain and the United States. This doctrine as to an isthmian canal has been recognized by the United States from the beginning, says Professor Wam baugh, and is the very essence of the Hay-Pauncefote treaty. The argument is as convincing as it is simple, and if it appears novel, its novelty lies only in the application of familiar principles of municipal law to the field of international relations, or at least to the relations of the two countries concerned. Precedents may not be abundant enough to justify the conclu sion that there is any accepted rule of unwritten international law which for