Page:Harvard Law Review Volume 32.djvu/206

170 1 7° HARVARD LAW REVIEW monopolistic;* competition was not the normal situation. With the rise of industrialism coincident with the settlement of America and cul- minating in the first half of the nineteenth century, competition became the normal situation, efifectually regiilating businesses, governmental control disappearing in practically all cases ^ except that of the inn- keeper ^ and the carrier.* It woiUd therefore seem that the failure of competition, actual or potential, to safeguard -the public interests was the conunon-law test of a public calling subjecting it to public control. In determining what constitutes a public use legislation, as has been shown, cannot be depended upon.^ The presence or absence of exclusive or other legal privileges, eminent domain, use of highways, or govern- mental financial aid, though helpful, are not conclusive;^" for if given for other than public purposes the grant is void.^^ Precedents are of little avail, for what is a public use to-day may not be to-morrow.^ That it is one's main undertaking or only incidental thereto is no cri- terion.^^ The number of consumers to whom the service is rendered is immaterial, there may be one or there may be many.^^ We must revert to the common-law standard, which is invariable, though the results attained may differ owing to modern developments and change of cir- cumstances.^^ In applying the common-law standard to determine whether in any particvdar undertaking competition or substantial monop- oly is the normal situation, two elements must be considered — that of monopoly and great public interest.^® Limitations of source of supply,^'^ limitations of time,^* scarcity of sites,^* and area of distribution ^ give one a natural monopoly; the enormous investments sunk in one place,^^ « I Wyman, § 27. ^ Thompson v. Lacy, 3 B. & Aid. 283, 286 (1820). ' Bretherton v. Wood, 3 Brod. & Bing. 54, 62 (182 1). See 11 Harv. L. Rev. 158. ' See note 2, supra. 1" Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 36 Sup. Ct. Rep. 583 (1916); State ex rel. Wood v. Consumers Gas Co., 157 Ind. 345, 61 N. E. 674 (1901); Munn v. Illinois, supra; Polk v. Coffin, 9 Cal. 56 (1858). See State ex rel. M. O. Danciger & Co. v. Public Service Commission, supra. " 17 Harv. L. Rev. 217 and 222. ^ The doctor, Y. B. 19 Hen. VI, 49, pi. 5 (1441), or the smith. Anon., Keilway, 50, pi. 4 (1450), could not at present be called public utilities. Hurley v. Eddingfield, 156 Ind. 416, 59 N. E. 1058 (1901). " Hahl V. Laux, 93 S. W. 1080, 42 Tex. Civ. App. 182 (1906); Gordon v. Hutch- inson, I W. & S. 285 (1841). " Bridal Veil Limibering Co. v. Johnson, 30 Ore. 205, 46 Pac. 790 (1896). " It is no longer required that tiie innkeeper provide for the traveler's horse. " 17 Harv. L. Rev. 221. ^^ Natural-gas fields or the supply of water are limited by nature. ^* The limitation of time is the big factor in subjecting the innkeeper to public control. The immediate needs of the traveler prevent choice and bargain. 1* Favorable locations are big factors in business, and their scarcity prevents effect- ive competition in that locality. Barrington v. The Commercial Dock Co., 15 Wash. 170, 45 Pac. 748 (1896); Munn v. Illinois, supra; People v. Budd, 117 N. Y. i, 22 N. E. 670, 682 (1889). 2" Gas and electricity are distributed by means of pipes and wires laid in the pubUc highways, for which permission from the local authorities must be had. This makes competition with the established company improbable if not impossible, while candles or coal can be shipped from any factory or mine to any market, thus preserving com- petition. 21 The enormous sums required to build an electric plant or railroad is a deterrent to others to duplicate such in light of the risk so incurred.
 * 17 Harv. L. Rev. 158. But see 28 Harv. L. Rev. 135, 141.