too much to say that the efficient regulation of the public employments by sufficient law is the most pressing problem confronting this nation; and it must be met without further hesitation. As these great combinations of capital have grown up under the law, so their legal rights must be subject to the rights of the whole people. Great power brings as its consequence the need of control of that power for the good of the whole people. Two ways only can be found to exercise such control. One way, that advocated by the radical persons, is government ownership and operation of the public utilities. The other way, which is in fact the conservative method of dealing with the problem, is the control of the rates and practices of the public service corporations for the public good. One or the other of these methods must be finally adopted. The conservative method is now on trial. It behooves us all to see to it that it be so intelligently tried, and that the law applicable to the case be so accurately enforced, that we may not be driven perforce to the radical alternative of public ownership.

§ 35. Differentiation of the public service law.

The hypothesis here put forward is that whether a business is public or not depends upon the situation of the public with respect to it. Are there enough of such purveyors to serve the public? or are there, for permanent reasons, never enough? If so, there will be virtual competition; if not, there will be virtual monopoly. In all of the businesses to be discussed in these chapters, competition, although from a legal point of view possible, is from the economic point of view improbable. So far as one can see, virtual competition is at an end in these industries, and virtual monopoly will henceforth prevail. Therefore it must be said that the public has now an interest in the conduct of these businesses by their owners. They are affected with a public interest, since these agencies are carried on in a manner to make them of public consequence.

Therefore, having devoted their property to a use in which the public has an interest, they in effect have granted to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest they have created. Plainly we have in the accepted use of these phrases the manifestation of a deep-seated change in habits of thought. Only twentyfive years ago the general feeling as to every sort of industrial relation was that it was better to leave all alone, that it was better to leave people to work out their own salvation. But of late years we have been calling upon the State to save us from monopoly in all its forms; and we are impatient if it delays.

§ 36. Unity of the public service law.

Not only has it been realized at last that we have relating to the public services a distinct department of the law, but also it is becoming recognized that within this department there is a consistent body of law in process of unification. It is in the firm belief that the law governing the public services will prove upon analysis to be a really unified body that the author has been working for many years. Certainly the general propositions hold true as to all public employments that all must be served, adequate facilities must be provided, reasonable rates must be charged, and no discriminations must be made. Moreover in dealing with the minor details of these principles, cases from one service will be found in point in another-what conditions there are precedent to service, what will excuse failure in provision of facilities, what is a proper basis for calculating rates and what differences constitute discrimination. It has been remarked many times that the common law may be relied upon to meet, by the continual development of its fundamental principles, the complex conditions created by the constant evolution in the industrial organization. One of the most striking of modern instances of this capacity of

growth in the common law is the astonishing progress in the working out of the detail of the exceptional law governing the conduct of public callings.

§ 37. The modern programme of State control.

In many of the States commissions have been established with full powers of ultimate supervision over practically all matters affecting the service, facilities, rates and discriminations of all the public employments now recognized as such. And in recent years the jurisdiction of the Commission at Washington has been extended extensively over interstate commerce until it includes not only common carriers and transportation facilities to a greater extent than at first, but such additional services as telephone and telegraph. Moreover, the powers of supervision of the Commission have been increased intensively by successive amendments to the Act beyond merely investigating conditions and reporting upon unproper practices, as it did at first, to the present stage where it fixes rates and future service, and gives reparation and other redress for past misconduct. It is our conscious programme to make still more effective our policy of public control of private ownership, but there is danger that unconsciously by failing to do what is right to all concerned on all sides we may drift into a position where we may be forced into public ownership and operation. For if this systematic programme to regulate effectually the charges of the public service companies fails of something like full success, there is no alternative but State ownership with its unknowable consequences. As matters stand to-day the advocates of State control are really the conservatives.

§ 38. Overshadowing importance of rate regulation.

All people who come in touch with the problem of rate regulation by any method of approach are agreed as to its overshadowing importance. Extracts from some noteworthy opinions will serve to show what strong language it

is necessary to use to give any idea of vital consequence of the general issue. "The administration of justice," said Webster, "is the chiefest concern of man upon earth." Within the scope of that function of government there is, perhaps, no single topic of greater magnitude or moment than controversies which arise in trade and commerce. Said Sir Walter Raleigh, "Whosoever commands the trade of the world commands the riches of the world, and consequently the world itself." In a material sense, and in our astonishing civilization, nothing is more important than the transportation of commodities sold or interchanged, and in transportation the stability and reasonable character of the rates charged therefor is scarcely less important than transportation itself. The three grand departments of government, legislative, executive, and judicial, are with steady and swerveless purpose enacting or enforcing laws to safeguard the rights of the general public, and as well that portion engaged in the conduct of the public services.

§ 39. Present state of the public service law.

In the belief of the writer the public service law has at length reached a stage of development in which it may be possible to state its principles with some degree of confidence. It is only within the last few years that it would have been within the range of possibility to do this. Twenty-five years ago the public services which were recognized were still few and the law as to them imperfectly realized. It was known from olden times that those who professed a public employment must serve all at a reasonable rate. As to the duty to serve it was thought that there were exceptions. As to the restriction of rates there was no standard. The important duty to provide adequate facilities had hardly advanced beyond the general law as to negligence. And the duty not to discriminate, was denied altogether. Even ten years ago when these four obligations had become generally recognized,

the details as to them in regard to any particular employment had been worked out only in very fragmentary manner. But at the present day it is just being appreciated that rapid progress may be made by the general recognition of the unity of the public service law, whereby cases as to one calling may be used to show the law in all. Indeed, it is only in our present day that the attempt to treat the public service law as a consistent body of law could be made with any hope of success.

§ 40. Ultimate limitations upon public employment.

In this crisis of affairs the people must be assured that the law is indeed adequate to deal with the situation, that it has not only elaborated detail to meet obvious wrongs seldom defended, but also enlightened comprehension to deal with the large policies openly justified which are truly inconsistent with public duty. That those who profess a public employment owe the utmost public service should be generally accepted as the fundamental principle upon which the law governing public employment is to be based. It is not agreed, however, how far this principle should be pressed; there is a clash of interests here, and there is an inclination on the part of those who conduct the public services to contest every issue. This is hardly an enlightened selfishness; for it seems to many who appreciate the temper of the public, that the time has come when extension of the law and enforcement of it should be the avowed attitude of all conservative persons who wish the perpetuation of the present condition of individual enterprise. It would be well, therefore, if the restless and the doubting who see many abuses and many wrongs in the conduct of our public services without prompt remedy or adequate redress, might be relieved and heartened by being shown that the common law is adequate to deal with all real industrial wrongs, and that with the aid of remedial statutes the administration of the law can be relied upon. It should