Page:Harvard Law Review Volume 4.djvu/52

36 36 HARVARD LAW REVIEW. which he always aroused in his classes. His departure must be felt with regret by all who have the interest of the School at heart, and to this is added a sense of personal loss among those who had hoped to have the benefit of his further instruction. The recent cases on *' trusts" suggest, among other more important things, the question whether it is material that the subject-matter of the V. The North River Sugar Refining Co.^ some twenty cases are cited, and the result summed up in the following sentence : " In all these cases, the reservation of the power to control the prices of neces- sary products, whether by express agreement or fair implication, has been condemned as unlawful." In Dolph v. Troy Laundry Co.^ moreover, one of the reasons for holding a contract between two rival traders fixing a scale of prices, legitimate, was that washing-machines are not articles of necessity.* In discussing the differences between a monopoly of a necessary and that of a non-necessary (if we may be allowed such a term), one must look at the question both from the side of the monopolist and from that of the public. Of course, the object of a monopolist is to raise prices, and thus enrich himself at the expense of the public. Now, it is undoubtedly true that, as prices are raised in the two cases we are con- sidering, the quantity of the non-necessary demanded by the public will fall off much more rapidly than that of the necessary. In other words, a man cannot make so much money out of the former, because his sales must be more limited than would be the result in case of an equal rise in the price of the latter. Therefore, the monopolist cannot gain so much at the expense of the public ; but does it follow that the public's real loss is less by the same amount that the monopolist's gain is less? We must not forget that the man who ceases to buy an article be- cause of the rise in price, or one who does not buy so much as he did at the lower price set by competition, suffers a loss as well as the man who buys the same amount as before but at a higher price. In the case of the non-necessary, more people prefer to take the loss by going without the article than in the case of the necessary ; that is, the same proportion of the loss does not materialize in the form of gain to the monopolist in the former as in the latter case. We do not mean to imply that the loss is as hard to bear in the one case as in the other, or that it will be to the interest of the monopolist to raise prices to the same extent in both cases ; but we do wish to point out that there is injustice to the public in the one case as in the other, and that the ordinary method of measuring the amount of the injustice by the amount of the monopolist's gain has a tendency slightly to exaggerate the difference in hardship to the public between the two kinds of monopoly. No doubt there is a difference, but it is a difference merely in degree. Turning to the reports, we find that in The Case of the Monopolies, • 38 Fed. Rep. 533. ? It was also held that the contract fell short of an attempt to create a monopoly, a ground which' Qt Itself would seem sufficient to support the decision entirely irrespective of the question of necessity. « II Coke, 84.
 * trust agreement " be an article of necessity. In the case of the People
 * 7 N. V. Sup. 406, at pp. 41a, 413.