now solely in Parliament. 6 Similarly in this country the power is in the legislatures, subject to such constitutional restrictions Legislative grants creating monopolies are strictly as exist. construed.8 § 110. Monopoly as exclusive of new right or franchise not previously possessed by community at large. It will be noted. from the definitions already given that the legal conception of a monopoly, as resulting from an act of government, is confined 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, infra. 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, infra (pp. 45-48), and quotation therein from Macaulay's History of England. See also Re Charge to Grand Jury, supra. Such monopolies had previously to the act of 1624, however, been declared illegal on common-law grounds, thus, in the "Case of Monopolies" (Darcy v. Allein), 11 Coke, 84b (1602), where a grant by the crown of the exclusive right to make cards within the realm was held void as "a monopoly and against the common law." See Hawkins' Pleas of the Crown, c. 79; Eddy on Combinations, § 6; article in 6 Mich. Law Rev. 1 (1907) by S. T. Miller. 6 Slaughter-House Cases, 16 Wall. 36, 66; 21 L. Ed. 394 (1873); Stewart v. Erie & Western Transp. Co., 17 Minn. 372, 395 (1871); Bancroft v. Thayer, 5 Sawyer, 502; 2 Fed. Cas. No. 835 (1879). Control of liquor traffic by the State itself was held not objectionable as a monopoly, in Guy v. Commissioners of Cumberland Co., 122 N. C. 471; 29 S. E. 771 (1898). As to power of municipal corporations, see § 114. 7 See § 113. 8 See, for instance, Saginaw GasLight Co. v. City of Saginaw, 28 Fed. 529, 535 (C. C. Mich., 1886); Omaha Horse Ry. Co. v. Cable Tramway Co., 30 Fed. 324 (C. C. Neb., 1887); Interstate Stockyards Co. v. Indianapolis Union Ry. Co., 99 Fed. 472, 482 (C. C. Ind., 1900); Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co., 8 Del. Ch. 468, 511; 46 Atl. 12, 22 (1900); Capital City Light & Fuel Co. v. City of Tallahassee, 42 Fla. 462; 28 So. 810 (1900); State ex rel. v. Cincinnati Gas-Light & Coke Co., 18 Ohio St. 262, 293 (1868); Appeal of Scranton Electric Light & Heat Co., 122 Pa. St. 154; 15 Atl. 446; 1 L. R. A. 285; 9 Am. St. Rep. 79 (1888); Brummett v. Ogden Waterworks Co., 93 Pac. 828, 833 (Supm. Ct. Utah, 1908). 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. Thus the legal conception of a monopoly has been held not to include the grant of an exclusive ferry franchise; 10 so of a grant of the right to supply gas or water 12 to a municipality. 11 See § 109; dissenting opinion of Story, J., in Charles River Bridge v. Warren Bridge, 11 Peters (U. S.), 420, 607; 9 L. Ed. 773 (1837); also Taylor v. Montreal Harbour Commissioners, 17 Rap. Jud. de Quebec, 275, 286 (1899); 1 Tiedeman's State and Federal Control of Persons and Property, § 128. 10 Patterson v. Wollmann, 5 N. D. 608; 67 N. W. 1040; 33 L. R. A. 536 (1896; so, notwithstanding constitutional prohibition against grant to any citizen of "privileges or immunities which upon the same terms shall not be granted to all citizens"); City of Laredo v. International Bridge & Tramway Co., 66 Fed. 246; 14 C. C. A. 1 (5th C., 1895), where, however, the court fell into considerable confusion, through failure to apply the definition of a monopoly as above given. 11 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 659; 6 Supm. 252, 256; 29 L. Ed. 516 (1885); Crescent City Gaslight Co. v. New Orleans Gaslight Co., 27 La. Ann. 138, 147 (1875); State v. Milwaukee Gas Light Co., 29 Wis. 454; 9 Am. Rep. 598 (1872); but see Norwich Gas-Light Co. v. Norwich City Gas Co., 25 Conn. 19, 38 (1856). Compare Baily v. City of Philadelphia, 184 Pa. St. 594, 605; tl. 494, 496; 39 L. R. A. 837, 841: 63 Am. St. Rep. 812 (1898). See as to grant of right to supply light by electricity, City of Denver v. Hubbard, 17 Colo. App. 346; 68 Pac. 993 (1902). 12 New Orleans Water-works Co. v. Rivers, 115 U. S. 674, 681; 6 Supm. 273, 276; 29 L. Ed. 525 (1885); Bartholomew v. City of Austin, 85 Fed. 359; 29 C. C. A. 568 (5th C., 1898); City of Memphis v. Memphis Water Co., 5 Heisk. (Tenn.) 495, 529 (1871). See City of Brenham v. Brenham Water Co., 67 Tex. 542; 4 S. W. 143 (1887); Altgelt v. City of San Antonio, 81 Tex. 436; 17 S. W. 75; 13 L. R. A. 383 (1891); Edwards County v. Jennings, 89 Tex. 618; 35 S. W. 1053 (1896); Omaha Water Co. v. City of Omaha, 147 Fed. 1, 6; 77 C. C. A. 267, 272; 12 L. R. A. N. S. 736, 739 (8th C., 1906). In Thrift v. Elizabeth City, 122 N. C. 31; 30 S. E. 349; 44 L. R. A. 427 (1898), under a constitutional prohibition against "monopoly," such a grant by a municipal corporation was held void, it being intimated that the same would have been held even as to a grant expressly authorized by statute. To like effect Hartford Fire Ins. Co. v. City of Houston, 110 S. W. 973 (Tex. Civ. App., 1908); reversed on another point in 116 S. W. 36 (Supm. Ct. Tex., 1909). § 111. Restriction created in exercise of police power.-The authority of a legislature to create restrictions by way of exercise of the police power is well established,13 though such exercise must be limited to measures designed to promote the public health, morals or safety, or otherwise the public welfare.11 A restriction created in the exercise of such power is not, ordinarily at least, open to objection as a monopoly, even in view of a constitutional restriction upon the power to create a monopoly,15 thus a prohibition against the grant of "any special or exclusive privilege." 16 Accordingly there have been sustained statutes requiring certain qualifications as a condition of the right to practice a certain trade or profession; 17 so statutes providing for exclusive use of certain school text-books; 18 so grants by municipalities of the exclusive 13 Noel v. People, 187 Ill. 587, 593; 58 N. E. 616, 618; 52 L. R. A. 287, 289; 79 Am. St. Rep. 238 (1900). 14 California Reduction Co. V. Sanitary Reduction Works, infra; Noel v. People, supra. 15 See, for instance, State v. Call, 121 N. C. 643; 28 S. E. 517 (1897); Jannin v. State, 42 Tex. Crim. App. 631; 51 S. W. 1126; 53 L. R. A. 349; 96 Am. St. Rep. 821 (1899); also 2 Hare's American Constitutional Law, p. 779. 16 See infra. 17 Thus of a provision for examination and license of medical practitioners. Matter of Campbell, 197 Pa. St. 581; 47 Atl. 860 (1901). So for obtaining by barber of certificate of registration. State v. Zeno, 79 Minn. 80; 81 N. W. 748; 48 L. R. A. 88; 79 Am. St. Rep. 422 (1900). Otherwise, however, of a statute limiting to registered pharmacists the right to sell patent and proprietary medicines at retail, but without requiring of them to make any inspection or examination of the Το same, Noel v. People, supra. similar effect, State v. Donaldson, 41 Minn. 74; 42 N. W. 781 (1889). As to creation of monopoly of business of keeping sailors' boarding houses, see White v. Holman, 44 Oreg. 180; 74 Pac. 933 (1904). As to requirement of length of residence in same locality as qualification for practice of medicine, see State v. Baer, 112 Iowa, 466; 84 N. W. 532; 51 L. R. A. 776 (1900). Compare State v. Pennoyer, 65 N. H. 113; 18 Atl. 878; 5 L. R. A. 709 (1889); State v. Hinman, 65 N. H. 103; 18 Atl. 194; 23 Am. St. Rep. 22 (1889). 18 Leeper v. State, 103 Tenn. 500; 53 S. W. 962; 48 L. R. A. 167 (1899); Kand v. Hartranft, 29 Wash. 591, 598; 70 Pac. 77, 79 (1902); Dickinson v. Cunningham, 140 Ala. 527; 37 So. 345 (1904). In Leeper v. State, however, it was (103 Tenn. 516; 53 S. W. 965; 48 L. R. A. 170) regarded as immaterial whether the statute derived validity from the police power, or the public character of the schools. privilege of removing garbage; 19 so statutes denying to individuals the right of sale of intoxicating liquors, and confining such right to public officials acting as such.20 § 112. Right under patent.-It may perhaps be doubted whether the definition of a monopoly as already stated includes patents granted to an inventor or discoverer. However this may be on common-law principles, the legality of such patents has long been declared by statute.21 And, as a general rule, the doctrine against monopolies does not render illegal restrictions imposed in granting a license. Thus it has been said: 22 19 Thus, in City of Grand Rapids v. De Vries, 123 Mich. 570; 82 N. W. 269 (1900); California Reduction Co. v. Sanitary Reduction Works, 126 Fed. 29; 61 C. C. A. 91 (9th C., 1903; see numerous decisions cited); State v. Robb, 100 Me. 180; 60 Atl. 874 (1905). Otherwise, however, of the privilege of removing substances that are not per se nuisances, e. g., rubbish, ashes and manure. Iler v. Ross, 64 Neb. 710; 90 N. W. 869; 57 L. R. A. 895; 97 Am. St. Rep. 676 (1902). See Dreyfus v. Boone, 114 S. W. 718 (Supm. Ct. Ark., 1908); Re Lowe, 54 Kan. 757; 39 Pac. 710; 27 L. R. A. 545 (1895); State v. Hill, 126 N. C. 1139; 36 S. E. 326; 50 L. R. A. 473 (1900); People v. Gardner, 143 Mich. 104; 106 N. W. 541 (1906); previous decision in 136 Mich. 693; 100 N. W. 126 (1904); affirmed in Gardner v. Michigan, 199 U. S. 325; 26 Supm. 106; 50 L. Ed. 212 (1905). 20 Plumb v. Christie, 103 Ga. 686; 30 S. E. 759; 42 L. R. A. 181 (1898). 21 21 Jas. 1, c. 3, § 5 (1624), saving from the operation of the act "any letters patents and grants of privilege for the term of fourteen years or under, hereafter to be "The made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as also they be not contrary to the law nor mischievous to the State, by raising prices of commodities at home, or hurt of trade, or generally inconvenient." By art. 1, § 8, of the Federal constitution, Congress has exclusive power "to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Laws have been enacted to carry this provision into effect. See Bement v. National Harrow Co., 186 U. S. 70, 80; 22 Supm. 747, 751; 46 L. Ed. 1058 (1902); General Electric Co. v. Wise, 119 Fed. 922 (C. C. N. Y., 1903). 22 Bement v. National Harrow Co., supra (186 U. S. 91; 22 Supm. 755). Here were sustained provisions relating to price, to manufacture and sale by the licensee, and to granting of other licenses by the licensor. It also appeared that the execution of the agreements embod general rule is absolute freedom in the use or sale of rights under the patent laws of the United States. The very object of these laws is monopoly, and the rule is, with few exceptions, that any conditions which are not in their very nature illegal with regard to this kind of property, imposed by the patentee and agreed to by the licensee for the right to manufacture or use or sell the article will be upheld by the courts. The fact that the conditions in the contracts keep up the monopoly or fix prices does not render them illegal." Nevertheless, in case of such a grant to one engaged in what has been regarded as a business of a "public character," such restrictions have been held illegal as interfering with the performance of the duty of the grantee to the public.23 And while the legality of a patent ied in the licenses settled a large amount of litigation regarding the validity of many patents. This decision was applied under like conditions in U. S. Consolidated Seeded Raisin Co. v. Griffin & Skelley Co., 126 Fed. 364; 61 C. C. A. 334 (9th C., 1903); National Phonograph Co. v. Schlegel, 128 Fed. 733; 64 C. C. A. 594 (8th C., 1904). See also Fair v. Dover Manuf. Co., 166 Fed. 117 (C. C. A., 7th C., 1908). So in Murphy v. Christian Press Assoc. Publishing Co., 38 App. D. 426; 56 N. Y. Suppl. 597 (1899), was sustained a provision in an agreement conferring the right to publish a copyrighted book, to ne effect that the book should not be sold for less than a stipulated price, the case of a combination being distinguished. So of provision in contract for sale of proprietary medicines, Miles Medical Co. v. Platt, 142 Fed. 606 (C. C. Ill., 1906); Miles Medical Co. v. Jaynes Drug Co., 149 Fed. 838 (C. C. Mass., 1906; so held against objection that Federal anti-trust act was applica ble). To the contrary seems John D. Park & Sons Co. v. Hartman, 153 Fed. 24; 82 C. C. A. 158; 12 L. R. A. N. S. 135 (6th C., 1907); on appeal from Hartman v. John D. Park & Sons Co., 145 Fed. 358, 386 (C. C. Ky., 1906); Miles Medical Co. v. Park, 164 Fed. 803 (C. C. A., 6th C., 1908). See also Garst v. Harris, 177 Mass. 72; 58 N. E. 174 (1900); Straus v. American Publishers' Assoc., 177 N. Y. 473; 69 N. E. 1107; 64 L. R. A. 701; 101 Am. St. Rep. 819 (1904); 193 N. Y. 496; 86 N. E. 525 (1908); Cortelyou v. Johnson, 138 Fed. 110 (C. C. N. Y., 1905); Bobbs-Merrill Co. v. Straus, 139 Fed. 155, 179, 190 (C. C. N. Y., 1905). 23 Thus, of grants of the right to use instruments covered by telephone patents. State ex rel. v. Bell Telephone Co., 36 Ohio St. 296; 38 Am. Rep. 583 (1880); Commercial Union Telegraph Co. v. New England Telephone, etc., Co., 61 Vt. 241; 17 Atl. 1071; 5 L. R. A. 161; 15 Am. St. Rep. 893 (1888). But a similar restriction was sustained |