The carrier cases are all cases of common carriage, and the distinction within the occupation is everywhere manifest. Nowhere is monopoly suggested as the distinguishing characteristic. A distinction based on monopoly would require proof that the common carrier had some kind of a monopoly which the private carrier did not have, or that "common" was synonymous with "monopoly." The plain meaning of the cases is the simplest solution of all the difficulties, the common was the public, the professional, the business carrier or other trader.

We may reasonably conclude, therefore, that, so far as the carrier's business is concerned, it is no different from any other business. The carrier, like every other business man, purports to serve and to deal with the public. Business is impersonal; in ordinary course it is merely a question of merchandise or other exchangeable value on the one hand and money on the other. A man is engaged in business when he solicits the favor of and undertakes to deal with persons indifferently for profit. This is the common characteristic of all business and at once its identification and definition.

The disappearance of this conception from our law in the case of all ordinary businesses and its retention in the case of carriers is to be explained partly by economic and social changes and partly by judicial misinterpretation of the early cases. That the disappearance did not take place suddenly is evidenced by the frequently cited cases of Gisbourn v. Hurst, Lane v. Cotton, and Coggs v. Bernard, decided at the beginning of the eighteenth century and discussed in the note," which still assert the ancient doctrine.

business nature of the employment, and the duty of indiscriminate service was, a business or common duty, not a duty of the baker as a baker.

The innkeeper was not from time immemorial regarded as a public servant. The common innkeeper was so regarded. See n. 33, supra. Nothing in the early cases suggests a basis for the contention that the occupation itself was peculiar or public or otherwise differentiated. If common it was peculiar and public, that is if one proposed to serve the public he must serve it; if he purported to be in business he was in a public employment, whatever that employment was, and was a "common"

servant.

The miller may, on occasion, have had a monopoly affecting the public; but no case is cited which ascribes the public character to a mill on the ground of monopoly, and there are many indications that mills were numerous. In Borough Customs, p. 37, a penalty is prescribed against bakers who hired mills. A favorite example of damnum absque injuria in the Year Books was where one erects a mill on his own land to the prejudice of a mill on his neighbor's land.

77 In Gisbourn v. Hurst, 1 Salk. 249 (1710), the court still retained the ancient con

But with the inventions of Arkwright, the writings of Adam Smith, and the spread of the idea of free trade, a great change took place in business conditions toward the close of the eighteenth century.78 In ordinary trades there ceased to be any need for a distinction between the common and the private exercise of a trade. With the repeal of the Statute of Apprentices in 1814 the distinction made in such a statement as "To make a man of a trade, he must be apprentice to him who did openly, commonly, and by publick

ception. This was an action in trover for goods taken by distress in a barn from the wagon of one who carried cheese to London, and usually loaded back with goods for all persons indifferently.

". . . It was agreed per curiam, that goods delivered to any person exercising a public trade or employment to be carried, wrought or managed in the way of his trade or employment, are for that time under a legal protection, and privileged from distress for rent; but this being a private undertaking required a farther consideration; and it was resolved, that any man undertaking for hire to carry the goods of all persons indifferently, as in this case, is as to this privilege, a common carrier; for the law has given the privilege in respect of the trader and not in respect of the carrier. . . .'

But this case was misinterpreted in the first sentence of the earliest text-book (Jeremy) on the law of carriers, which read: "The law has avowedly given the privilege of its special protection in respect of the trader, and not the carrier," and was the center of much discussion by writers, courts, and lawyers in the past century. The meaning of "privilege" in the case referred to is the freedom from distraint. By the term "in respect of the trader" the court meant that the privilege existed, not because the plaintiff was a carrier, but because he was a common carrier, that is, because he was a trader, or in the business of carriage.

Even the language of Chief Justice Holt in Lane v. Cotton (1701) seems quite plain. He says:

"If a man takes upon him a publick employment, he is bound to serve the publick as far as the employment extends; and for refusal an action lies, as against a farrier refusing to shoe a horse. Keilw. 50. Against an inn-keeper refusing a guest, when he has room. Dier. 158, pl. 32. Against a carrier refusing to carry goods when he has convenience, his wagon not being full. He had known such action brought, and a recovery upon it, and never disputed. So an action will lie against a sheriff, for refusing to execute process. The same reason will hold, that an action should lie against the post-master, for refusing to receive a letter, etc." 1 Ld. Raym. 646, 654 (1701). The same is true of his language in Coggs v. Bernard, 2 Ld. Raym. 909, 912 (1714), where he said:

"The case is shortly this. This defendant undertakes to remove goods from one cellar to another, and there lay them down safely, and he managed them so negligently, that for want of care in him some of the goods were spoiled. . . . There has been a motion in arrest of judgment, that the declaration is insufficient, because the defendant is neither laid to be a common porter, nor that he is to have any reward for his labour. So that the defendant is chargeable by his trade, and a private person cannot be charged in an action without a reward. . . ."

78 Cunningham, supra, Laissez Faire, p. 609.

profession sell, and not privately by stealth," 79 would cease to be necessary and would be gradually dropped as meaningless.

In the case of the carrier's trade, however, there were peculiar internal characteristics which brought it constantly before the courts. In the early history of carriage before the advent of railroads, the special feature that had to be dealt with was bailment, and the liability for loss of goods, which was finally developed into a socalled insurer's liability. In the course of time, with the introduction of railroads, other special and peculiar features, such as the enjoyment of peculiar privileges, franchises, and rights of way, became characteristic of carriage, and the relative importance of the carrier's calling was greatly accentuated. There was nothing more natural than that the word "common," still retained by carriers and absent from most other occupations, should be assumed to be indicative of peculiar duties and of peculiar subjectability to state control.

But as we have seen, this view is erroneous, and not supported by the cases upon which it purports to rest. Under a true interpretation of the common law all business is public, and the phrase "private business" is a contradiction in terms. Whatever is private is not business, and that which is business is not private. Every man engaged in business is engaged in a public profession and a public calling. The parties to business are the merchants on the one hand and the public on the other. The merchant or trader opens his doors into the public street and invites all who pass to enter. By public advertisement and circularizing he solicits patronage from all who read. He extends an invitation or makes a continuing offer to all indifferently. He seeks credit, employs the machinery of credit, and by so doing involves the fortunes of the community at large. He floats his securities in the public market. His good-will, always a principal asset, consists entirely of the likelihood that the people in general will avail themselves of the inducements which he has offered.

show the soundness of this view.80

Reason and authority alike

79 Shepherd, Office of Justice of the Peace (1652), vol. 1, ch. 20.

80 The German Commercial Code recognizes this practically by requiring the registration of traders as such. Staub's Kommentar zum Handelsgesetzbuch, vol. 1, §§ 8-16. See also Gadsby, Commercial Registration in Japan, 28 L. QUART. Rev. 305 (1912); Pallares, Derecho Mercantil (Mexico, 1891), p. 910; Lyon-Caen and Renault, Droit Commercial, vol. 1, § 10.

The importance of this principle in dealing with present-day problems is far reaching, and to the fact that business as such throughout the course of its modern development has been suffered to be, as it were, without law unless it could be brought into some exceptional class, is to be attributed much of the difficulty which now prevails. This distinct doctrine of the common law,—the doctrine of common employment, needs to be vitalized and intelligently applied. How remote this conception lies from our modern thinking is well illustrated by the dissenting opinions in Munn v. Illinois 81 and Budd v. New York,82 and by the opinion of the court in State v. Edwards. In the first case Mr. Justice Field, dissenting, said:

"... There is no magic of the language, though used by a constitutional convention, which can change a private business into a public one, or alter the character of the building in which the business is transacted. A tailor's or a shoemaker's shop would still retain its private character, even though the assembled wisdom of the State should declare, by organic act or legislative ordinance, that such a place was a public workshop, and that the workmen were public tailors or public shoemakers. . . . The defendants were no more public warehousemen, as justly observed by counsel, than the merchant who sells his merchandise to the public is a public merchant, or the blacksmith who shoes horses for the public is a public blacksmith; and it was a strange notion that by calling them so they would be brought under legislative control. . . .

It is indeed true that legislative fiat cannot change the essential nature of things, and it is fortunately true that with a live recognition of the nature of business on the part of the courts and business men, a minimum of legislation will be either attempted or necessary. Passing by the subject of regulation as not being confined or peculiar to the phenomenon now under investigation, we may briefly advert to the duties generally conceded to be incident to common employments as such at common law, for these duties, as we now see, are not peculiar to common carriers, but are incident to businesses of every kind.

It is said, and the accepted view is, that in a so-called private business "a person has an absolute right to refuse to have business

81

94 U. S. 113, 138 (1876).

82

143 U. S. 517 (1892).

83 86 Maine 102, 29 Atl. 947 (1893).

relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice, or malice, and there is no law which forces a man to part with his title to his property." 1984 It is scarcely to be presumed that such statements have, as a rule, been made advisedly after a full investigation of the materials, many of which have in fact only recently been made available through the publications of the Selden Society. The right to refuse to have business relations is one thing; the right to continue in business and have business relations with some and not with others in equal circumstances is a wholly different thing.

It is beyond dispute that arbitrary discrimination and refusal to deal are wholly repugnant to the profession of common employment. As said by Mr. Justice Doe in a case involving common carriers: 85

"A common carrier is a public carrier. He engages in a public employment, takes upon himself a public duty, and exercises a sort of public office. . . . He is under a legal obligation; others have a corresponding legal right. His duty being public, the correlative right is public. The public right is a common right, and a common right signifies a reasonably equal right. . . . A common carrier of freight cannot exercise an unreasonable discrimination in carrying for one and refusing to carry for another. He may be a common carrier of one kind of property, and not of another; but, as to goods of which he is a common carrier, he cannot discriminate unreasonably against any individual in the performance of the public duty which he assumed when he engaged in the occupation of carrying for all. His service would not be public if, out of the persons and things in his line of business, he could arbitrarily select whom and what he would carry. Such a power of arbitrary selection would destroy the public character of his employment, and the rights which the public acquired when he volunteered in the public service of common-carrier transportation. With such power, he would be a carrier, a special, private carrier, but not a common, public one. . . .”

Opposed as the supposed right of discrimination and of refusal to deal is to reason, it is no less so to that long line of cases the application of which has heretofore been confined to the supposedly

84 Delz v. Winfree, 80 Tex. 400, 402, 165 S. W. 111 (1891).

McDuffee v. Portland & Rochester R. R., 52 N. H. 430, 447 (1873).