right to exclude all persons from using it and to exact any compensation he may see fit from any person to whom he may from time to time grant the occasional use of this private railway. Yet as soon as he holds out his railway as ready to serve the public he finds that the law now places upon him a new series of duties. This may be a surprise to the owner, for, naturally enough, he thinks that as long as he does not so use his property as to injure other persons he may use it as he pleases, continuing to exclude some persons from the advantages of the property and granting to other persons those advantages on any terms he may choose, whether those terms are identical or are discriminatory, and whether they give him an enormous compensation or not. His natural belief as to this matter is wholly in conflict with American and English law. From the time when he holds out his railway as a means of serving the public he is held by the courts to have entered upon a public calling, and he is thereafter compelled by the courts to perform some peculiar duties, of which it is enough for the present purpose to specify three- the duty of serving all comers, the duty of rendering identical services on identical terms, and the duty of charging only a reasonable rate. It is not necessary to give in full the reasons upon which these rules of law are founded; but those to whom rules come as a surprise may very properly wish that the reasoning be not wholly omitted. Briefly, then, one of the reasons is found in the importance to the public of such service as this, and another is found in that discouragement of building other railways which arises from the building of this one. In other words, the public needs the service of a railway, and danger of competition from this one tends to prevent the building of another; and hence, unless this one can be compelled to give its chosen service fairly, the public will really suffer an injury. The burdens, it should be repeated, are not cast upon this owner without his consent. If he had chosen, he might have carried on his railway wholly for himself, unless and until it should be taken from him by right of eminent domain; but by announcing his railway as open for the public he has assumed a new and peculiar position to which the law attaches special duties, and among others those enumerated duties of serving all, of serving without discrimination, and of serving at reasonable rates. This is the important doctrine upon which, in the United States, rests a great part of the power of those State and national commissions which deal with railways and other public callings. It is indeed one of the most important of the doctrines by which public welfare is secured without departure into socialism. The peculiar duties attaching to those entering upon a public calling belong not only to individuals but also to incorporated companies and to incorporated companies more clearly than to individuals because the incorporated company owes its very existence to that public which incorporated it. Besides, the incorporated company engaged in a public calling sometimes receives and uses that right of taking private property which is termed eminent domain; and, as the right of eminent domain cannot be exercised save by a government or under a grant given by a government, and whenever exercised must be used for public purposes, the mere exercise of the power of eminent domain carries with it the assumption of the duties of public service as to the property thus acquired. Again, if a railway for public use is built by a city or other municipal corporation, this municipal corporation incurs the same duties and still more clearly, for the municipal corporation is created by the State as an instrumentality for nothing but the public service. Further, and still more clearly, as each of the United States is created by the people for public service exclusively, a State's railway, unless, indeed, used exclusively by the State government itself or by county or municipal governments, must be subject, as a matter of principle, to precisely similar duties. It is true that a State government, as distinguished from its officers, cannot be sued without the State's consent, and that hence a State may enjoy practical immunity from suit; but the absence of a remedy cannot blind anyone to the fact that a State owes duties; and the duties which the State imposes in behalf of the public against individuals and incorporated companies and municipalities cannot honorably be said by a State to be non-existent as duties of the State simply because the State may have supplied no machinery whereby the State itself can be subjected to compulsion. Finally, in case the United States should build a railway, other than for the use of troops or for some similar end resembling that to which a private individual for his own private purposes might devote a railway right to exclude all persons from using it and to exact any compensation he may see fit from any person to whom he may from time to time grant the occasional use of this private railway. Yet as soon as he holds out his railway as ready to serve the public he finds that the law now places upon him a new series of duties. This may be a surprise to the owner, for, naturally enough, he thinks that as long as he does not so use his property as to injure other persons he may use it as he pleases, continuing to exclude some persons from the advantages of the property and granting to other persons those advantages on any terms he may choose, whether those terms are identical or are discriminatory, and whether they give him an enormous compensation or not. His natural belief as to this matter is wholly in conflict with American and English law. From the time when he holds out his railway as a means of serving the public he is held by the courts to have entered upon a public calling, and he is thereafter compelled by the courts to perform some peculiar duties, of which it is enough for the present purpose to specify three- the duty of serving all comers, the duty of rendering identical services on identical terms, and the duty of charging only a reasonable rate. It is not necessary to give in full the reasons upon which these rules of law are founded; but those to whom rules come as a surprise may very properly wish that the reasoning be not wholly omitted. Briefly, then, one of the reasons is found in the importance to the public of such service as this, and another is found in that discouragement of building other railways which arises from the building of this one. In other words, the public needs the service of a railway, and danger of competition from this one tends to prevent the building of another; and hence, unless this one can be compelled to give its chosen service fairly, the public will really suffer an injury. The burdens, it should be repeated, are not cast upon this owner without his consent. If he had chosen, he might have carried on his railway wholly for himself, unless and until it should be taken from him by right of eminent domain; but by announcing his railway as open for the public he has assumed a new and peculiar position to which the law attaches special duties, and among others those enumerated duties of serving all, of serving without discrimination, and of serving at reasonable rates. This is the important doctrine upon which, in the United States, corporation the mineras other municipal autres - and created by the State sette Inner States is created Tea & State's railway, unless. indeed, user excuserte face government itself or by county or municipu goverment precisely summiar ones I tinguished from te offre matter of principle. met a State government, as das sued without the State's consent practical immunity from suit, tự the absence of any inc anyone to the fact that a bete owes dudes, and the DHC the State imposes ir beinf of ne public agains, more ac corporated companies and mungahties cammot innOTECT DE BUILD & State to be non-existent at tales of the State simply because the State may have supplied an machinery whereby the State ise car be subjected to compus. Finally, in case the United States shouc buic a railway, other than for the use of troops or for some similar end resembling that to which a private individual for his own private purposes might devote a railway n ail of his own, the United States, as matter of principle, must come under the same duties attaching to a public calling-the duty of serving all, of serving equally, and of serving on reasonable terms. It is true that the United States cannot without consent be sued in any court, whether the court be State, national, or international, and that hence there is no means known to ordinary law of enforcing such an obligation as this, and that thus in a sense the duty is merely moral; but some merely moral duties are perceptible by the law, and surely a duty precisely like one which the national government enforces in its own courts against others cannot, in case it rests upon the national government itself, be termed in any abusive or disrespectful or minimizing sense a merely moral duty. Perhaps analytical jurists may say properly enough that there is no duty unless there is a whip behind it; but a nation cannot say this with self-respect. It follows, then, that if the United States enters upon any business belonging to the class called public callings, there rest upon the United States, as matter of principle, the same duties which belong to others who enter upon such callings — the duties of serving all, of discriminating against none, and of serving at a reasonable rate. It should be understood that such duties derogate in no way from the ordinary powers of government. No, as to the places where the United States may carry on these undertakings the United States must continue to have, to the same extent as before, full power of keeping the peace and all the other powers for which governments are organized; but by entering upon a career essentially non-governmental it will assume as to nongovernmental matters, in this instance as to some sort of business belonging to the class of public callings, the duties belonging to all other conductors of such callings. THE CANAL AS A "PUBLIC CALLING" What callings are public? That is a difficult question to answer; but it is enough for the present purpose to point out that by both reason and authority the character of a public calling attaches to a canal. Indeed, a canal is a somewhat clearer instance than a railway; for canals, having preceded railways, were earlier examples of public callings; and, |