147. Agreements not to bid. 148. Combinations among owners of patents. § 115. Restriction upon competition as resulting from acts of individuals. As already seen, a restriction upon competition may result from an act of government. But it may also result from the acts of mere individuals,1 and, indeed, under modern conditions of business, it is restrictions of the latter kind that are more commonly presented for public and judicial consideration. It is obvious that such restrictions may be infinitely various as to degree. If of a hundred grocers transacting business in a given community, one withdraws from business, it may be that there results a restriction upon competition, but if so it would ordinarily be hardly appreciable. If out of three grocers so transacting business one withdraw, there might be an appreciable, though incomplete, restriction. If all but one withdraw, there is, for the time being at least, a complete restriction. § 116. Monopoly as resulting from acts of individuals.-As in case of a restriction upon competition resulting from an act of government, a restriction upon competition resulting from acts of individuals is, if complete, or approximately complete, what is commonly known as a monopoly. It is obvious, however, that the definitions seen to have been applied to a monopoly resulting from an act of government are not applicable here. Hence have resulted new definitions. Thus: "A monopoly, in the modern sense, is created when, as a result of efforts to that end, previously competing businesses are so concentrated in the hands of a single person or corporation, or a few persons or corporations acting together, that they have power to practically control the prices of commodities and thus to practi 1 Although ordinarily an illegal combination in restriction upon competition is among sellers, yet there is no inherent reason why such a combination should not exist among buyers, as was held to be the case in State v. Smiley, 65 Kan. 240, 263; 69 Pac. 199, 207; 67 L. R. A. 903, 913 (1902); Arnold v. Jones Cotton Co., 152 Ala. 501; 44 So. 662; 12 L. R. A. N. S. 150 (1907). cally suppress competition. "A monopoly exists where all or so nearly all of an article of trade or commerce within a community or district is brought within the hands of one man or set of men, as to practically bring the handling or production of the commodity or thing within such single control, to the exclusion of competition or free traffic therein." 3 So "any combination the tendency of which is to prevent competition in its broad and general sense, and to control, and thus at will enhance prices, to the detriment of the public, is a legal monopoly." So 2 U. S. v. American Tobacco Co., 164 Fed. 700, 721 (C. C. N. Y., 1908). See numerous decisions cited. 3 Herriman v. Menzies, 115 Cal. 16, 20; 46 Pac. 730, 731; 35 L. R. A. 318, 319; 56 Am. St. Rep. 82 (1896); Continental Securities Co. v. Interborough Rapid Transit Co., 165 Fed. 945, 958 (C. C. N. Y., 1908). 4 People v. North River Sugar Refining Co., 54 Hun, 355, 377; 3 N. Y. Suppl. 401, 413; 2 L. R. A. 33, 42 (1889). To like effect, State v. Eastern Coal Co., 70 Atl. 1 (Supm. Ct. R. I., 1908); Jones v. Carter, 101 S. W. 514 (Tex. Civ. App. 1907; holding a reservation in a deed invalid as a monopoly within the meaning of a provision of the Texas Constitution); Pocahontas Coke Co. v. Powhatan Coal & Coke Co., 60 W. Va. 508, 520; 56 S. E. 264, 269; 10 L. R. A. N. S. 268, 280; 116 Am. St. Rep. 901 (1907). See also San Diego Water Co. v. San Diego Flume Co., 108 Cal. 549, 559; 41 Pac. 495, 497; 29 L. R. A. 839, 843 (1895); Continental Securities Co. V. Interborough Rapid Transit Co., supra; California Steam Nav. Co. v. Wright, 6 Cal. 258 (1856); U. S. v. TransMissouri Freight Assoc., 58 Fed. 58, 82; 7 C. C. A. 15, 86; 24 L. R. A. 73, 82 (8th C., 1893). In the case last cited it was held that no monopoly of trade was evidenced by the contract, each member being left to compete with every other for its share of the traffic, and competing companies not parties to the arrangement, being in operation in the same region. But see reversal in 166 U. S. 290; 17 Supm. 540; 41 L. Ed. 1007 (1897). See also Re Greene, 52 Fed. 104, 115 (C. C. Ohio, 1892). The business of collecting news and furnishing reports thereof to newspapers held under the circumstances not to constitute a monopoly, State ex rel. Star Publishing Co. v. Associated Press, 159 Mo. 410; 60 S. W. 91; 51 L. R. A. 151; 81 Am. St. Rep. 368 (1900). See on the general subject, article in 3 Va. Law Reg. 163, 177 (1897-8) by W. L. Royall. Comparatively speaking, the use of the words "monopoly," "monopolizing," etc., in the anti-trust acts, is not frequent or conspicuous; for instances, however, of prohibitions against "monopolizing" or "attempting to monopolize," or "creating," "establishing," or "maintaining" a "monopoly," "encouraging monopoly," "monopolizing trade revolutionary has been the recent extension of the meaning attached to the word "monopoly" that there is even a tendency to wholly exclude what was originally covered by the term.5 § 117. Extension of doctrine of illegality of monopoly resulting from act of government, to restriction upon competition resulting from acts of individuals.-Though for centuries monopolies have been condemned by the common law of England, such condemnation was, until comparatively recently, limited in its scope to monopolies created by the crown. But such condemnation has now been extended, not only to monopolies, or commerce," or the like, see under the Federal act (c. XIX); also under Ga. (§ 207); Miss. (§ 219); Mont. (§ 221); N. M. (§ 223); N. Y. (§ 224); Utah (§ 233); Wis. (§ 235). For somewhat elaborate definitions of a monopoly, see under S. C. (§ 229); of "trust or monopoly," under S. D. (§ 230). For constitutional provisions especially directed against monopolies, see under Ark. (§ 205); Md. (§ 216); N. C. (§ 225); S. D. (§ 230); Tenn. (§ 231); Tex. (§ 232); Wash. (§ 234); Wyom. (§ 236). 5 With reference to the use of the term "monopolize" in the Federal and Louisiana anti-trust acts, it was said in American Biscuit & Manuf. Co. v. Klotz, 44 Fed. 721 (C. C. La., 1891): "In construing the Federal and State statutes we exclude from consideration all monopolies which exist by legislative grant; for we think the word 'monopolize' cannot be intended to be used with reference to the acquisition of exclusive rights under government concession, but that the lawmaker has used the word to mean 'to aggregate' or 'concentrate' in the hands of few, practically, and as a matter of fact, and according to the known results of 6 human action, to the exclusion of 7 How recently is indicated by so comparatively recent a decision as Kellogg v. Larkin, 3 Pinney (Wis.), 123, 147; 56 Am. Dec. 164, 177 (1851), where an agreement was sustained as not tending to create a monopoly, the court saying: "The cases cited all arose upon royal grants or by-laws, and consequently were cases of involuntary restraints. They do establish the doctrine that the grant of a monopoly is void; but they do not support the averment of the plaintiff in error. I assert that the right to stifle competition by contract, so far as it is injurious to the parties contracting, has not before been denied or questioned for two hundred years, unless two cases reported in 4 Denio, 349; 47 Am. Dec. 258, and 5 Denio, 434; 49 Am. Dec. 282, are to be considered as denying the right." (Referring to Hooker v. Vandewater and Stanton v. Allen, respectively.) It was asserted by Francis Wharton in 3 Crim. Law Mag. 1, 5 (1882), that, "in this country, the right of individuals to buy up but to other restrictions upon competition resulting from acts of individuals. Thus it is said: "The idea of monopoly is not now confined to a grant of privileges. It is understood to include a 'condition produced by the acts of mere individuals.' Its dominant thought now is, 'the notion of exclusiveness or unity'; in other words, the suppression of competition by the unification of interest or management, or it may be through agreement and concert of action.” 8 "The objections lie not to the manner in which the monopoly is created. The effect on industrial liberty and the price of commodities will be the same, whether created by patent, or by an extensive combination among those engaged in similar industries, controlled by one management." The propriety of this extension of the condemnation is generally recognized, in this country at least, but has in some quarters been denied, though it is not always clear whether the denial is based on the impropriety of allowing any such extension, or on the impropriety of allowing it in the particular staples, provided no fraud or coercion be practiced, was not, at least between 1820 and 1875, questioned." Compare Queen Ins. Co. v. State, 86 Tex. 250, 269; 24 S. W. 397, 403; 22 L. R. A. 483, 493 (1893). In Stickney's "State Control of Trade and Commerce," which contains an elaborate criticism of the prevalent doctrine in condemnation of restrictions upon competition, the point that its true basis is the doctrine against monopolies was not considered. See, however, pp. 94, 95. See articles in 33 Am. Law Rev. 499 (1899) by Lionel Norman; 13 Harv. Law Rep. 198, 265, 273 (1899-1900) by E. Q. Keasbey; also in 20 Pol. Sci. Quart. 13 (1905), on "The Law Concerning Monopolistic Combinations in Continental Europe" by Francis Walker. 8 National Cotton Oil Co. V. Texas, 197 U. S. 115; 25 Supm. 379; 49 L. Ed. 689 (1905). See also People v. North River Sugar Refining Co., 54 Hun, 355, 377; 3 N. Y. Suppl. 401, 413; 2 L. R. A. 33, 42 (1889); Charleston Gas Co. v. Kanawha Gas Co., 58 W. Va. 22; 50 S. E. 876; 112 Am. St. Rep. 936 (1905); Burrows v. Interborough Metropolitan Co., 156 Fed. 389 (C. C. N. Y., 1907); U. S. v. American Tobacco Co., 164 Fed. 700, 720 (C. C. N. Y., 1908). 9 State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 187; 30 N. E. 279, 290; 15 L. R. A. 145, 159; 34 Am. St. Rep. 541, 554 (1892). Here it was also said: "Monopolies have always been regarded as contrary to the spirit and policy of the common law," the only authority cited on this point being Darcy v. Allein, a case, as we have seen, of a monopoly created by act of government. 10 case. Restrictions upon competition resulting from acts of individuals seem to have, as a rule, escaped condemnation in England.11 10 Thus, in Kellogg v. Larkin, 3 Pinney (Wis.), 123, 150; 56 Am. Dec. 164, 179 (1851), recovery was allowed on a lease of a warehouse, though, to the knowledge of the plaintiff, executed in furtherance of an agreement between proprietors of six wheat mills on the one hand, and the proprietors of twelve warehouses on the other, whereby the warehousemen were to give the former "full, absolute and uninterrupted control of the Milwaukee wheat market, so far as they shall be able to do so, by virtue of their capacity as warehousemen or vessel and dock owners." But, as said in U. S. v. Addyston Pipe & Steel Co., 85 Fed. 271, 285; 29 C. C. A. 141, 154; 46 L. R. A. 122, 133 (6th C., 1898), this decision cannot be upheld in view of the more modern authorities. 11 See articles in 13 Harv. Law Rev. 198, 265, 275 (1899-1900) by E. Q. Keasbey; 28 Law Mag. & Rev. 303 (1902-3) by D. F. Pennant. In Smith v. Scott, 4 Paton (Scotland), 17 (1798), a combination among those engaged in the business of chaise hirers or post-masters in Edinburgh, to raise the price of service, was declared illegal by the House of Lords, on appeal from Scotland. The court said: "The case is very different whether an individual might or might not ask what rate for posting he thought fit; but he must not make a party business of it." But this decision seems to have been generally overlooked; and in England, restrictions that would now, at least, be held illegal in most of our States, have been sustained, as appears from the following instances: In Hearn v. Griffin, 2 Chitty, 407 (1815), an agreement between two rival coach proprietors not to run in opposition to each other, and to charge the same prices, was sustained by the King's Bench against the objection that it was void as "in restraint of that competition in trade which is so conducive to the interest of the public." It was said by Lord Ellenborough: "This is merely a convenient mode of arranging two concerns which might otherwise ruin each other." In Wickens v. Evans, 3 Younge & J. 318 (1829), an agreement among three persons, rivals in the business of selling trunks and boxes in different parts of England, entered into in view of the inconvenience and loss resulting from rivalry, and whereby each should have the right to do business in certain districts to the exclusion of the others, was held not illegal as "in restraint of trade." It was clearly shown in U. S. v. Addyston Pipe & Steel Co., 85 Fed. 271, 284; 29 C. C. A. 141, 153; 46 L. R. A. 122, 132 (6th C., 1898), that this decision is opposed to later ones, in this country at least. In Shrewsbury & Birmingham Ry. Co. v. London & Northwestern Ry. Co., 16 Jurist, 311 (1851), an agreement between two railway companies tending to prevent competition, was held not unlawful, the operation of the agreement being, however, limited to one particular line of |