Monopoly

* A license or privilege allowed by the sovereign for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.' An exclusive right granted to a few, of something which was before of common right. Lord Coke's definition is " 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 every thing, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade." 6 A grant which gives to one person, or to one association of persons, an exclusive right to buy, sell, make, or use a given thing or > [Dunlap, Adm. Pr. 132. 2 Pelham v. Rose, 9 Wall. 103 (1869). s Gk. monoa, single, one; graphein,U> wnte. < Gk. monus, sole, exclusive; polein, to sell. s 4 Bl. Com. 159. Charles River Bridge u. Warren Bridge, 11 Pet. commodity, or to pursue a designated employment. 1 The prerogative of granting such rights having been abused, the courts adjudged them illegal,* and Parliament, by statute of 21 James I (1624), c. 3, abrogated the practice, except with respect to patents for fourteen years. A patent resembles a contract more nearly than it resembles a monopoly, in the commonlaw sense of the latter term. All such grants relating to any known trade or manufacture have been held by all the judges of England to be void at common law as destroying the freedom of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it in the power of the grantees to enhance the price of commodities.-* A legislative grant of an exclusive right to supply water or gas to a municipality and its inhabitants is a grant of a franchise vested in the State, in consideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution from impairment. Such franchise is violated by a grant to an individual of the right to supply his premises with water (or gas) by the same means, namely, by pipes laid through the public streets. In making such grants, a State legislatiu'e does not part with the police power and duty of protecting the public health, the public morals, and the public safety, as one or the other may be involved in the exercise of that franchise by the grantee.' Though the use of a street for water mains may not be of common right, yet when the use would assist in the maintenance of a claim of exclusive right to sell water, the courts, in view of the constitutional declaration that monopolies " shall never be allowed," will give no sanction to a contract entered into by the city resulting in a monopoly. The exercise of such a franchise, involving, as it does, a use of the public streets, is subject to control.* 1 City of Benham v. Benham Water Co., 67 Tex. 561 (1887), Stayton, A. J. 2 Case of Monopolies (Darcy v. AUein), 6 Coke, 84 (1601). See Butchers' Union Co. v. Crescent City Co., Ill U. S. 761 (1684); Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 36 (1856); Slaughter-House Cases, infra. spennock v. Dialogue, 2 Pet. 'IS (1829); Gayler v. Wilder, 10 How. 494 (1850); Turrill v. Michigan, &o. E. Co., 1 Wall. 491 (1863); 111 U. S. 763. Slaughter-House Cases, 16 Wall. 102 (1872), Field, J. dissenting; 18 id. 138 (1873). See also 19 Pick. 54; 13 Allen, 372; 1 Wash. T. 284. New Orleans Water- Works Co. v. Rivers, 115 IT. S. 674 (1885), Harlan, J.; Louisville Gas Co. v. Citizens' Gas Co., ib. 683, 691 (1885); New Orleans Gas Co. v. Louisiana Light Co., ib. 650 (1885); New Orieaus Water- Works Co. V. Louisiana Sugar Refining Co., 12.j id. 18 (1888). See also Memphis v. Water Co., 5 Heisk. 495 (1871). See generally Pullman Palace Car Co. v. Texas, &c. R. Co., 11 F. R. 625 (1882); ib. 632-34, note. [City of Benham v. Benham Water Co., 67 Tex. 661 Plaintiff by its cliarter was given tha exclusive horse-railway franchise, of Omaha for fifty years. Defendant, under a city ordinance, consented to by the people, undertook to lay a cabiQ tramway on streets occupied by the plaintiff. The court refused to enjoin the defendant, holding that the grant of the monopoly was of forms of transportation then fcnownand not of such as might subsequently be devised. " The fuel company has placed itself in the position of seeljing to obtain from the railroad company, not merely favorable rates, but a discrimination against. other parties. The result will be the building up of a monopoly in the coal business. A party who voluntarily enters into such a contract is in no position to asl£ the courts that anything be strained in his behalf. If the fuel company Qould make similar contracts with other transportation companies, running to other fields, it would soon be master of the coal business of the northwestern country. It would have the monopoly of that business, and could dictate prices to the consumer and starvation wages to the producers; and, when the first contracts had expired, it could dictate transportation rates to the railroad companies... It is impossible to disintegrate the contract, and say that one part is good and the other bad. The parties entered into it as a whole, and the courts should not try to divide it in order to uphold parts. If one part is void and the rest valid, the contract must be read as an entirety, and the whole declared void. Any other doctrine would result in building up monopolies. Persons who enter into such contracts need never expect, no matter what the conduct of the other party, recognition in courts of justice. See Combination, 8; Happiness; Police, 3; Privilege, 1, Special; Railroad; TRAnB-MARK; Trust, 2.