Page:Harvard Law Review Volume 32.djvu/207

171 NOTES 171 the cheapness and efficiency of large scale production, the lack of an adequate substitute ^ create a virtual monopoly ,2' and where any or all of these monopolistic elements are present to a substantial degree, com- petition as a practical matter is superseded by the normal situation of substantial monopoly. Couple to these elements of monopoly the great public interest in the business undertaken, and the need of governmental control to prevent the exploitation of the public for private gain is apparent. "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the com- munity at large." 2* The decisions of Public Service Commissions as to what constitutes a public use in those businesses admitting of both a public or private calling have been almost unanimously contra to the decisions of the courts.25 The decisions of the commissions show a belief that the declara- tions of the legislature,^^ the number of consumers,'^^ or the mere pro- fession of a public use 2* are conclusive, without inquiring whether such use has in fact become affected with a public interest. Thus where the respondent was held to be a public utihty on the grounds that he was conducting a business declared by statute to be subject to the jurisdic- tion of the commission,'^' the court, in the recent case of State ex rel. M. 0. Danciger 6°. Co. v. The Public Service Comfnission,^^ after setting forth the statute defining an electric plant, said: "While the definitions quoted supra express therein no word of public use, or necessity that the sale of electricfty be to the public, it is apparent that the words 'for public use' are to be understood and to be read therein." The court pro- ceeded to show that the respondent had not in the use cf its property affected it with a public interest, that the undertaking was not. therefore a public utility, and so overruled the decision of the commission. That there should be a conflict between the decisions of the Public Service Commissions and the courts is undesirable. The decisions of the commissions may be due to the radical tendencies present in all new fields, or they may be due to the fact that temporary jurisdiction is at ^^ He who bums candles is obviously at a greater disadvantage than his neighbor who is supplied with gas from the local company. ^17 Harv. L. Rev. 227. See People v. Budd, supra, where the court speaks of "practical" monopoly. ^ Munn V. Illinois, supra. ^ State ex rel. Public Service Commission v. Sp'okane & Inland Empire Ry. Co., 89 Wash. 599, 154 Pac. mo (1916); Del Mar Water, Light & Power Co. v. Eshleman, 167 Cal. 666, 140 Pac. 591, 948 (1914); Cawker v. Meyer, 147 Wis. 320, 133 N. W. 157 (1911); State Public Utilities Commission ex rel. Evansville Telephone Co. v. Okaw Valley Telephone Co., 282 111. 336, 118 N. E. 760 (1918); De Pauw University V. Public Service Commission, 247 Fed. (Ore.) 183 (191 7); Brown v. Gerald, 100 Me. 351, 61 Atl. 785 (1905); Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405 (1906); Associated Pipe Line Co. v. Railroad Commission, supra. ^ Associated Pipe Line Co. v. Railroad Commission, supra; Cawker v. Meyer, supra. In the latter case it was contended by the Public Service Commission that anyone suppl3nng light, heat, or power to another for compensation was by statute subject to the jurisdiction of the commission. See Munn v. Illinois, supra: "It may not be made so by the Constitution of Illinois or this statute, but it is by the facts." " That the number of consumers is immaterial, see note 14, supra. 28 J Wyman, § 200. »» Vol. 4, Mo. P. S. C. R. 650. '» 205 S. W. 36 (Mo.) (1918).