for the abandonment by one of the companies of the discharge of its duties to the public, and that the price of gas as fixed thereby should not be changed below a certain specified rate without the consent of the other, especially where one of the companies is prohibited by statute from entering into such a contract, is an illegal contract.

The supplying of illuminating gas is in its essence a business of a public nature, to meet a public necessity; and where such business cannot be restrained without prejudice to the public interest, and it is hardly conceivable that such restraint can otherwise result, contracts imposing such restraints, however partial, will not be enforced or sustained, because in contravention of public policy. It may be stated, as a sound rule, that a corporation cannot disable itself by contract from performing the public duties which it has undertaken, nor, by agreement, compel itself to make public accommodation subservient to its private interests.'

1Gibbs v. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979..

CHAPTER X.

MONOPOLY.

$50. Monopoly as Opposed to Popular Government.

51. Monopoly Based upon Oppression and Usurpation of the Rights of Others.

52. Combinations to Control the Necessaries and Comforts of Life. 53. Effect of Constitutional Provisions Regarding Monopolies. 54. Combinations Tending to Impede Competition, Illegal.

§ 50. Monopoly as Opposed to Popular Government.-In the public interest a monopoly is sometimes allowed in order to promote the public health or the public security, or increase public comfort, or to secure aid to the government in the development of some public enterprise, or the more efficient carrying forward some great public undertaking.' But the government itself usually retains a control over such monopoly, to prevent it being used as an instrument of oppression on for the purpose of irregular and inordinate private gain. In itself the very idea of monopoly is contrary to the genius and spirit of free institutions and government. It is in conflict with constitutional precedents and destructive of free institutions.

Where, by an amendment to the charter of a gas company authorizing it to lay its pipes through the streets and public grounds of a city, it is provided that the rights shall be exclusive except as against such other persons as may be authorized by Legislature, such provision is held to constitute a monopoly which is not entitled to protection in equity, and an injunction will not be allowed to prevent another company from laying down its gas pipes.'

While there may be no direct constitutional provision or declar'Slaughter House Cases, 83 U. S. 16 Wall. 36, 21 L. ed. 394; New Orleans Water Works Co. v. Rivers, 115 U. S. 674, 29 L. ed. 525; New Orleans Gaslight Co. v. La. Light & Heat Co. 115 U. S. 650, 29 L. ed. 516; Louisville Gas Co. v. Citizens Gaslight Co. 115 U. S. 683, 29 L. ed. 510.

Norwich Gaslight Co. v. Norwich City Gas Co. 25 Conn. 19; High, Inj. 333.

atory legislation against a monopoly, yet the very nature and essence of a free government is opposed to monopolies, and the usual Bill of Rights appearing in most state constitutions, which declares in terms or in effect that no man or set of men are entitled to exclusive public emoluments or privileges from the community, indicates this hostility.'

As a general rule no agreement will be sustained, the effect of which would be to fasten on the community the monopoly of an important staple or industry, although it has been held in Massachusetts that an agreement not to run an opposition stage between Boston and Providence was valid, on the ground that the act complained of was a breach of trust; and the same reason may be applied to a ruling made shortly afterwards sustaining an agreement not to compete for seven years in the northwest trade.'

§ 51. Monopoly Based upon Oppression and Usurpation of the Rights of Others.-Monopolies are in opposition to the enjoyment of common rights and are in fact the usurpation of such rights.

The oppressive nature of the principle upon which a monopoly is rested will clearly appear if applied to the usual trades and employments in life. The granting of the exclusive right to engage in such vocations would be repudiated in all communities as an invasion of common right. The State may undoubtedly require many kinds of business to be carried on beyond the thickly settled portions of a city, or even entirely without its limits, especially if attended with odors and noises which affect the health or disturb the peace of the neighborhood; but even the

14 Bacon, Abr. p. 764, title Monopoly; 4 Bl. Com. 160; Hindmarch, Patents, chap. 2, p. 7 et seq.

Pierce v. Fuller, 8 Mass. 223.

Perkins v. Lyman, 9 Mass. 522.

Norwich Gas Light Co. v. Norwich City Gas Co. 25 Conn. 19; People v. North River Sugar Ref. Co. 2 L. R. A. 33, 22 Abb. N. C. 164; Slaughter House Cases, 83 U. S. 16 Wall. 102, 26 L. ed. 417; Hudson v. Thorne, 7 Paige, 261, 4 L. ed. 148; Chicago v. Rumpff, 45 Ill. 90; Live Stock D. & B. Asso. v. Crescent City L. S. L. & S. H. Co. 1 Abb. U. S. 388; Rex v. Waddington, 1 East, 167; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 672; The Case of Monopolies, 11 Coke, 84b.,Brenham v. Brenham Water Co. 67 Tex. 561; Craft v. MeConoughy, 79 Iil. 346;, Slaughter House Case, 1 Woods, 21; Skrainka v. Scharringhausen, 8 Mo. App. 523; Arnot v. Pittston & E. Coal Co. 68 N. Y. 558; Western U. Teleg. Co. v. American U. Teleg. Co. 65 Ga. 160; Hoffman v. Brooks, 11 Week. L. Bull. 358; Aiger v. Thacher, 19 Pick. 51.

exercise of this necessary power does not warrant the granting to particular classes or corporations a monopoly of the business thus permitted.'

An ordinance preventing a citizen from engaging in a particular business in a certain locality, while it permits another to so engage, is oppressive and void."

A contract between a city and an attorney, declaring itself irrevocable, and giving to the attorney annually for twenty years, one third of all rents and receipts from ferry and bridge privileges, and mutually binding the parties to do no act and to make no contract interfering with its terms, is in contravention of public policy and cannot be enforced.'

Power exercised to control business or trade by the combination of selfish interests, for the sake of private gain-to ruin the many to enrich the few-undermines the very principle which sustains a government of the people for the good of the many, rather than for the profit of the few, at the expense of the many. These two conflicting aims cannot exist long in a government without working its destruction as a free State. Monopoly destroys individual rights and freedom of individual action, and enables vast combinations of wealth, influence and selfish energy, to crush private enterprise and competition.

$ 52. Combinations to Control the Necessaries and Comforts of Life.-All such combinations, whether calculated to control the necessities of life or simply the ordinary comforts and conveniences introduced by advancing civilization, should meet the active opposition of both legislative, executive and judicial power,* 'Butchers U. S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 764, 28 L. ed. 589.

Com v. Bearse, 132 Mass. 551; Myers v. Baker, 9 West. Rep. 490, 120 III. 567; Tugman v. Chicago, 78 Ill. 405; Chicago v. Rumpff, 45 Ill. 90.

8 Waterbury v. Laredo, 68 Tex. 565.

The Case of Monopolies, 11 Coke, 84 b; Rex v. Waddington, 1 East, 167: People v. North River Sugar Ref. Co. 2 L. R. A. 33, 22 Abb. N. C. 164; Com. v. Hunt, 45 Mass. 111; Com. v. Wallace, 16 Gray. 221; Com. v. Prius, 9 Gray, 127; Com. v. Eastman, 1 Cush. 189; Alger v. Thacher, 19 Pick. 51; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; Crawford v. Wick, 18 Ohio St. 190; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Marsh v. Russell, 66 N. Y. 288; Kelley v. Derlin, 58 How. Pr. 487; Woodruff v. Berry, 40 Ark. 251; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Craft v. McConoughy, 79 Ill. 346; Raymond v. Learitt, 46 Mich. 447, 41 Am. Rep. 170; Re Richmond Retail Coal Co., (Pa.) 9 Ry. & Corp. L. J. 31.

as, an agreement to absorb and monopolize the transportation of a community.'

Whatever may be the immediate effect of such monopoly, though at its inception it may reduce prices for the purpose of crushing existing competition, its final result is to vest in those in control of the monopoly the absolute fixing of values. It does not do this upon the natural law, of supply and demand, but creates an artificial scarcity of the article, to be filled only upon compliance with its terms. It has repeatedly been condemned by the courts as unlawful. Agreements to create a monopoly and to stifle competition in trade are void, and conspiracies to control trade are indictable even at common law and should be met with firm resistance among a free and independent people, desirous of maintaining commercial liberty.'

That combinations to control the necessities or comforts of civilized communities should be resisted by legislative power, is shown in the enactments of many of the states and in the Act of Congress, approved July 2, 1890, entitled "An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies," as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

"Sec. 1. Every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

"Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the sev

'Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 4?4; Maguire v. Smock, 42 Ind. 1.

People v. North River Sugar Ref. Co. 2 L. R. A. 33, 22 Abb. N. C. 164; Rec v. Cope, 1 Strange, 144; Rer v. De Berenger, 3 Maule & S. 68; Rex v. Norris, 2 Ld. Ken. 300; Reg. v. Gurney, 11 Cox, Cr. Cas 414; Levi v. Levi, 6 Car. & P. 239.