icy involves, as an essential element, the idea of a wrong committed against a considerable number of persons, such number being commonly incapable of precise determination. It is important to note that so different are the conditions of existence, comparing one time or country with another, that an act, illegal as against public policy, under the conditions of a given time and country, may not be so under the conditions of another. Hence, in applying this test of liability, precedents based on different conditions of time and place should be employed with great caution. So, too, the lack of precedents furnishes no sufficient ground for refusal to pronounce illegal, acts performed under radically 1 Thus, it is said in United States v. Trans-Missouri Freight Assoc., 19 U. S. App. 36, 53; s. c., 58 Fed. Rep. 58, 68 (8th Cir., 1893), with refer ence to public policy in connection with contracts in restraint of trade: "Public policy changes with the changing conditions of the times. It is hardly to be expected that a people who are transported by steam with a rapidity hardly conceived of a century ago, who are in constant and instant communication with each other by electricity, and who carry on the most important commercial transactions by the use of the telegraph, while separated by thousands of miles, will entertain precisely the same views of what is conducive to the public welfare in commercial and business transactions as the people of the last century, who lived when commerce crept slowly along the coasts, shut out of the interior by the absence of roads, and hampered by an almost impassable It is with the public policy of to-day, as illustrated by ocean. . public statutes and judicial decisions, that we have now to deal. In considering that subject we are not to be governed by our own views of the interests of the people, or by general considerations tending to show what policy would probably be wise or unwise. Such a standard of determination might be unconsciously varied by the personal views of the judges who constitute the court. The public policy of the nation must be determined by its constitution, laws and judicial decisions. So far as they disclose it, it is our province to learn and enforce it; beyond that it is unnecessary and unwise to pursue our inquiries." See also Davies v. Davies, 36 L. R. Ch. D. 359 (1887). 2 This is peculiarly applicable to precedents concerning the validity of contracts in restraint of trade. See note 1, above; also, Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co., L. R. App. Cas. (1894), 535, 553; Diamond Match Co. v. Roeber, 106 N. Y. 473; s. c., 13 N. E. Rep. 419 (1887). new conditions of time and place. Obviously, the public policy of a given jurisdiction may be determined by the legislative power, subject to constitutional restriction, if any.2 § 18. Nature and definition of monopolies.- Competition, especially among sellers, is so universal as to be commonly regarded as a part of the normal condition of things. Until within a comparatively recent period, absence of competition has usually been the result, not of the acts of mere individuals, but of a grant that is the act of government, conferring upon a single individual or set of individuals the exclusive right of buying or selling a given article within a given area. This exclusive right of selling is known as a monopoly. In England the power of creating monopo 1 This is peculiarly applicable to the development of the doctrine forbidding monopolies that result from the mere acts of private parties. 2 People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268, 296; s. c., 22 N. E. Rep. 798 (1889). Thus, in Stewart v. Erie & Western Transp. Co., 17 Minn. 372, 396 (1871), a traffic contract entered into by a railroad corporation, that it was authorized to make, was held not illegal, though resulting in a practical monopoly. See, however, as to grant of exclusive privilege to manufacture and sell gas, City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 69, 119 (1879). In Cameron v. N. Y. & Mt. Vernon Water Co., 62 Hun (N. Y.), 269; s. C., 16 N. Y. Suppl. 757 (1891), it was said: "The consolidation of corporations engaged in the same general line of business is not against public policy. The legislature has permitted it for years and still permits it. There is a great differ ence between the consolidation of two corporations into one new corporation, and the combination between two existing corporations for the prevention of competition. The former is permitted and the latter is condemned. It is not necessary to point out the distinction so far as the public or private good is concerned. It is enough that the legislature has drawn the distinction." Notwithstanding the general rule of public policy condemning restrictions upon competition, patent-rights furnish conspicuous instances of such restrictions expressly legalized by the legislative power. See § 18. 3 Until recently the accepted definitions of a monopoly have been confined to such as are created by act of government. Thus, it is defined in 4 Blackstone's Commentaries, p. 159, as "a license or privilege allowed by the king for the sole buying and selling, making, working or using of anything whatsoever, whereby the subject lies was for a long time in the crown, but was so abused by the appointing power that, by virtue of statute, it is now solely in Parliament. Similarly in this country the power is in the legislatures,2 subject to such constitutional restrictions as exist. It is to be noted that the legal conception in general is restrained from that liberty of manufacturing or trading which he had before." So in the dissenting opinion of Story, J., in Charles River Bridge v. Warren Bridge, 11 Peters (U. S.), 420, 607 (1837), citing East India Co. v. Sandys, 10 Howell's State Trials, 371, 386, 425 (1684), as “an institution by the king, by his grant, commission or otherwise to any persons or corporations of or for the sole buying, selling, making, working or using of everything, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade." See also Darcy v. Allein, 11 Coke, 84b (1802); United States v. E. C. Knight Co., 156 U. S. 1, 9; s. c., 15 Supm. Ct. Rep. 249 (1895). 1 By 21 Jas. 1, c. 3 (1624), declaring that all monopolies, grants, letters patent, etc., for the "sole buying, selling, making, working or using of anything" should be void. But there had been much earlier legislation directed against monopolies. See 9 Edw. 3, c. 1 (1335), cited in Darcy v. Allein, 11 Coke, 84b (1602). As is said by Blackstone (4 Commentaries, p. 159), such monopolies "had been carried to an enormous height during the reign of Queen Elizabeth." For a vivid characterization of the evils leading to the popular agitation in England against monopolies, about the beginning of the seventeenth century, see argument of counsel in the Slaughter-House Cases, below (pp. 45-48), and quotation therein from Macaulay's History of England. Such monopolies had previously to the act of 1624, however, been declared illegal on commonlaw grounds. See § 19. 2 Slaughter-House Cases, 16 Wall. 36, 66 (1873); Stewart v. Erie & Western Transp. Co., 17 Minn. 372, 395 (1871); Bancroft v. Thayer, 5 Sawyer, 502 (1879). But legislative grants creating monopolies are construed strictly. See, for instance, Saginaw Gas-Light Co. v. City of Saginaw, 28 Fed. Rep. 529, 535 (Cir. Ct. Mich., 1886); Appeal of Scranton Electric Light & Heat Co., 122 Pa. St. 154; s. c., 15 Atl. Rep. 446 (1888). Sometimes an exclusive right is created by a municipal corporation under the authority of statute. See as to the power of a municipal corporation to create exclusive rights, 1 Dillon on Municipal Corporations (4th ed.), SS 362, 374, 380, 385. The unusual case of a monopoly by a State of a private business was under consideration in Lowenstein v. Evans, 69 Fed. Rep. 908 (Cir. Ct. So. Car., 1895), where the Federal anti-trust act was held inapplicable to the monopoly of the liquor traffic by the State of South Carolina under a statute of that State. 3 Thus, the provision of the Texas of a monopoly, as created by act of government, is confined to such monopolies as result from the absorption by one individual or set of individuals of a right previously possessed by the community at large, and does not include the vesting in such individual or set of individuals of a new right not previously possessed by the community at large. constitution (art. 1, § 26), that "perpetuities and monopolies are contrary to the genius of a free government and shall never be allowed." For other provisions see Appendix. But such a provision does not apply to a restriction created in the exercise of the police power. See, for instance, State v. Call, 121 N. C. 643; s. c., 28 S. E. Rep. 517 (1897); People v. Warden of City Prison, 26 N. Y. App. Div. 228; S. C., 50 N. Y. Suppl. 56 (1898), and cases cited; also 2 Hare's American Constitutional Law, p. 779. In the same spirit have been established constitutional prohibitions against granting exclusive "privileges." See Stimson's American Statute Law, § 17; Matter of Union Ferry Co., 98 N. Y. 139 (1885). Under such provisions have been held invalid legislative grants of the exclusive privilege to supply gas to cities; thus, in St. Louis GasLight Co. v. St. Louis Gas, Fuel, etc. Co., 16 Mo. App. 52 (1884); Citizens' Gas-Light Co. v. Louisville Gas Co.,81 Ky. 263 (1883). These provisions, occasioned by the frequent and gross abuses perpetrated by specially chartered corporations, especially, perhaps, banking corporations, have led to the enactment of general laws authorizing the formation of corporations, which are a creation of the present cent It may perhaps ury, and have been generally enacted in this country, as well as in Great Britain. See Diamond Match Co. v. Roeber, 106 N. Y. 473, 481; S. C., 13 N. E. Rep. 419 (1887). In Norwich Gas-Light Co. v. Norwich City Gas Co., 25 Conn. 19, 38 (1856), a monopoly created by legislative grant was held illegal, even in the absence of constitutional restriction. See, however, Saginaw GasLight Co. v. City of Saginaw, 28 Fed. Rep. 529, 535 (Cir. Ct. Mich., 1886; see note 2, p. 88, above). Though legislative grants condemned as monopolies have, as a rule, been special laws, yet the condemnation was extended to exclusive privileges sought to be secured under a general law, in People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268, 297; s. C., 22 N. E. Rep. 798 (1889), a case of a corporation formed with power to purchase and hold the capital stock of any gas company in Chicago. Control of liquor traffic by the State itself was held not objectionable as a monopoly in Guy v. Commissioners of Cumberland Co., - N. C. -; S. C., 29 S. E. Rep. 771 (1898). 1 See definitions, note 3, p. 87, above; also dissenting opinion of Story, J., in Charles River Bridge v. Warren Bridge, 11 Peters (U. S.), 420, 607 (1837). See also Patterson v. Wollman, 5 N. D. 608; s. c., 67 be doubted whether the definition of a monopoly as thus stated includes patents granted to an inventor or discoverer. N. W. Rep. 1040 (1896), sustaining our view, been erroneously placed a grant of an exclusive ferry fran- under the definition of monopochise, as not being within a con- lies. stitutional prohibition against a grant to any citizen of "privileges or immunities which upon the same terms shall not be granted to all citizens." So has been sustained a grant of the right to supply gas to a municipality. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 659; s. c., 6 Supm. Ct. Rep. 252 (1885); but see Norwich GasLight Co. v. Norwich City Gas Co., 25 Conn. 19, 38 (1856; see note 3, p. 89, above). So has been sustained a grant of the right to so supply water. New Orleans Water-works Co. v. Rivers, 115 U. S. 674, 681; s. C., 6 Supm. Ct. Rep. 273 (1885); Bartholomew v. City of Austin, 52 U. S. App. 512; s. c., 85 Fed. Rep. 359 (5th Cir., 1898); but see City of Brenham v. Brenham Water Co., 67 Tex. 542; s. c., 4 S. W. Rep. 143 (1887); Altgelt v. City of San Antonio, 81 Tex. 436; s. c., 17 S. W. Rep. 75 (1891); Edwards County v. Jennings, 89 Tex. 618; s. c., 35 S. W. Rep. 1053 (1896). So a grant of a ferry franchise was sustained in City of Laredo v. International Bridge & Tramway Co., 30 U. S. App. 110; s. C., 66 Fed. Rep. 246 (5th Cir., 1895), where, however, the court fall into considerable confusion, through failure to apply the definition of a monopoly as above given. This seems to be the most appropriate place for considering certain classes of cases that have, in Owing, it would seem, to a failure to distinguish between the duty of a carrier to the general public, and the right of the carrier to select the instrumentalities to be employed in serving the public, such right of selection has in certain cases been denied. Thus, grants of exclusive privileges to hack proprietors were held void in McConnell v. Pedigo, 92 Ky. 465; s. C., 18 S. W. Rep. 15 (1892); Kalamazoo Hack & Bus Co. v. Sootsma, 84 Mich. 194; s. c., 47 N. W. Rep. 667 (1890); Montana Union Ry. Co. v. Langlois, 9 Mont. 419; s. c., 24 Pac. Rep. 209 (1890); Cravens v. Rodgers, 101 Mo. 247; s. c., 14 S. W. Rep. 106 (1890; under constitutional prohibition against “discrimination in charges or facilities in transportation . . between transportation companies and individuals, or in favor of either”). So, privileges to express companies. Sandford v. Railroad Co., 24 Pa. St. 378 (1855); New England Express Co. v. Maine Central R. R. Co., 57 Me. 188, 196 (1869); or to connecting steamboat company. Indian River Steamboat Co. v. East Coast Transp. Co., 28 Fla. 387; s. C., 10 So. Rep. 480 (1891). But the granting of such an exclusive privilege is a mere incident of the general power of transportation, and is no more open to objection as a monopoly than is the lease or grant of specific property, as the exercise |