DEPENDENT SERVICES OF COMMON CARRIERS

ises controlled by the steamboat company, other steamboats possibly might be kept away. In this case, as in the others, the first question is as to how far the public duty goes; within those limits there- ought to be no discrimination. VI The most modern application of this law is to be seen in a case from Canada, the Telephone Case (3 Can. Ry. Cas. 203). The facts require full relation for appreciation of the problem. The Bell Telephone Company by an agreement, dated November n, 1891, covenanted to furnish to the Canadian Pa cific Railway Company wherever it might have exchanges, telephone connections be tween the offices and stations of the railway company and the exchanges of the telephone company free of charge, and to issue to the officials of the railway company annual passes good for the trunk lines of the tele phone company and free telephone exchange connection. The railway company agreed to furnish to the telephone company annual passes over its lines, and the telephone com pany was to have the exclusive right of placing telephone instruments, etc., in the stations, offices, and premises of the railway company throughout the Dominion. This agreement was to remain in force for five years, and on November n, 1896, it was continued for a further period of three years. On May i, 1902, a new agreement in similar terms was entered into between the two companies and was to remain in force for a period of ten years. The municipalities at Fort William and Port Arthur, having pre viously established municipal telephone ex changes in competition with the Bell Tele phone Company in those towns, desired to connect with the stations of the Canadian Pacific Railway Company and after the passing of the Railway Act of 1903, an ap plication was made to the Board of Railway Commissioners. The majority of the tribunal held that there was nothing illegal in giving such a

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exclusive right; but a minority held for the applicants. An extract from each view is given herewith as the case is of first impres sion. Bailey J., for the majority, said: "If it be said that the Bell Company has a monopoly, the question may fairly be asked, 'What does their monopoly consist of?' Certainly not of the telephone business. There is nothing to prevent telephone com panies from being established in any local ity where a company with means sufficient for the purpose may choose to locate. The extent of their monopoly so faras affects the present application is the right to have their phones in the railway station on railway premises. The only difference between the Bell Company and any other company is that the railway company's agent may be reached directly by subscribers by phone, other companies not having a phone in the station may reach him indirectly by their agent most conveniently located. There is, therefore, no monopoly of the business of telephony; there is no monopoly of the in formation which the railway officials have to furnish for the general public; there will be no material difference in the expense of maintaining him; so that, so far as I can discover, the general interests of the public are not prejudicially affected." Mills, dissenting, said in part: "In all these cases, however, one thing is clear, viz: that the fundamental and guiding principle is the public interest, and that no restraint upon trade or restriction upon legitimate business in any part of the country, should be regarded as reasonable and in harmony with public policy, unless it can be clearly shown that it does not interfere or tend to interfere with the rights and interests of the public in that locality. It may be said that an exclusive privilege, such as that in the telephone agreement, does not interfere with the public interest, because the public will be better served by a strong, well-equipped organization, such as the Bell Telephone Company, than it would be served if free competition were allowed. That may or