public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control."

In this case of the grain elevator experience shows that in a given community there are not usually competitive conditions; monopolistic conditions generally prevail. Why? Not by accidental coincidence, but by natural limitation. The facts are that in any given community the plots of ground upon which this business may be conducted with convenience and efficiency are few and concentrated. In the case of the Chicago elevator those are the lots which both border upon the river and are adjacent to the terminals of the railroads entering the city. Thus grain elevators because of the nature of the traffic must be placed in or near a definitely fixed point; and thereby they have a virtual monopoly over their business; their number cannot be indefinitely multiplied, and competition cannot effectively regulate their business. Since their business is necessary to the public, it therefore follows that they must serve the whole public. There are elements of publicity in the business of elevating grain which peculiarly affect it with a public interest. They are found in the nature and extent of the business, its relation to the commerce of the State and country, and the practical monopoly enjoyed by those engaged in it. The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation.2

2 Munn v. Illinois, supra, is undoubtedly one of the leading cases in American constitutional law. It has been cited with approval hundreds of times, both in the federal and the State courts. See Rose's Notes on U. S. Sup. Ct. Rep. vol. 9, pp. 21-55.

§ 29. Warehouses as an illustration.

This commanding position is always a badge of public calling, because it gives the upper hand. The most extreme case of this sort is Nash v. Page. That case was a controversy between the proprietors of ten of the tobacco warehouses in the city of Louisville, and the appellants, twenty-seven in number, who were dealers in tobacco. It appeared that the appellants had been denied the right to make purchases of tobacco at the warehouses of which the defendants were the proprietors. Accordingly, they had applied to the chancellor for an injunction asking that these warehousemen be enjoined from refusing them permission to make purchases at their several warehouses, and from rejecting their purchases when making the highest bids for the tobacco offered upon the payment of such fees as were charged other buyers. The refusal was upon the basis of a restriction which had been lately attempted to members of the Board of Trade.

The opinion of Mr. Justice Pryor is one of the most significant on this subject: "Since the formation of the State government, the sale of this great staple has been fostered and protected by legislation. Such warehouses have always been regulated by law for the benefit of the producer as well as those who are proprietors of these warehouses, and the latter have assumed an obligation to the public which exists as long as they continue public warehousemen. It is conceded fact that more than five millions in value of tobacco annually find its way from the producer to the warehouses in that city. The greater part of this product is grown within the State, and the producer has almost of necessity to place his tobacco under the control of and for sale by these several warehousemen at public auction. All this tobacco must necessarily pass through these warehouses, subject to such charges as are reasonable and proper.

3 80 Ky. 539 (1882).

Such a

public duty may be imposed on these warehousemen in express terms or by implication, but whether so imposed or not, it arises from the facts of the case. In this great tobacco centre the producer is restricted to these public warehouses, or rather these public warehouses have a mutual monopoly of the sales of tobacco at auction, and the fact that there is more than one or a dozen such warehouses cannot affect the question." 4

30. Associated Press as an illustration.

In various lines of business at the present time there are at most a few corporations, often one corporation, which have substantial control of the market in that industry. Whether these monopolistic conditions are real or fictitious, natural or accidental, is the question. A most interesting case that comes to mind at this point is Inter-Ocean Publishing Company v. Associated Press.5 The plaintiff newspaper had regularly taken the news of the defendant bureau. One of the by-laws of the Associated Press forbade members from buying news of any other agency; notwithstanding which the plaintiff took specials of the Sun Publishing Association. Thereupon the Associated Press enforced its by-law against the plaintiff, which is the basis of this action.

Mr. Justice Phillips held the by-law bad: "The organization of such a method of gathering information and news from so wide an extent of territory as is done by the appellee corporation, and the dissemination of that news, requires the expenditure of vast sums of money. It reaches out to the various parts of the United States, where its agents gather news which is wired to it, and through it such news is received by the various important newspapers of the country. Scarcely any newspaper could organize and conduct the means of gathering

4 Acc. Pannell v. Louisville T. W. Co., 113 Ky. 630, 68 S. W. 662, 23 Ky. Law. Rep. 24 (1902).

5 184 Ill. 438, 56 N. E. 822, B. & W. 53 (1900).

the information that is centred in an association of the character of the appellee because of the enormous expense, and no paper could be regarded as a newspaper of the day unless it had access to and published the reports from such an association as appellee. For news gathered from all parts of the country the various newspapers are almost solely dependent on such an association, and if they are prohibited from publishing it or its use is refused to them, their character as newspapers is destroyed and they would soon become practically worthless publications. The Associated Press, from the time of its organization and establishment in business, sold its news reports to various newspapers who became members, and the publication of that news became of vast importance to the public, so that public interest is attached to the dissemination of that news. The manner in which that corporation has used its franchise has charged its business with a public interest. It has devoted its property to a public use, and has, in effect, granted to the public such an interest in its use that it must submit to be controlled by the public for the common good, to the extent of the interest it has thus created in the public in its private property.” 6

§ 31. Ticker service as an illustration.

This case of the Associated Press is supported by those decisions which treat the ticker service as public in its nature because of its momentary monoply in its distribution of quotations. In one case, Shepard v. Gold Stock and Telegraph Co., one such company made the rule that the quotations furnished were for the subscribers' own use. The court was asked to declare the regulation void.

7

6 But see State v. Associated Press, 159 Mo. 410, 60 S. W. 91 (1900); Matthews v. Associated Press, 133 N. Y. 335, 32 N. E. 981 (1893). 738 Hun, 338, B. & W. 52 (1885).

Mr. Justice Pratt treated the question with discrimination: "Defendants are a public corporation under obligation to render their services impartially and without discrimination to all persons who comply with their reasonable rules. Yet the contract entered into by the parties is not to be disregarded, and such reasonable stipulations as it contains will be respected and enforced by the court. The contract provides as follows: These reports are furnished to subscribers for their private use in their own business, exclusively. It is stipulated that such will not sell or give up the copies of the reports in whole or in part, nor permit any outside party to copy them for use or publication. Under this rule subscription by one party for the benefit of himself and others at their joint expense will not be received. The stipulation is reasonable and not in conflict with the duty owed by defendants to the public."8

§ 32. The public services as virtual monopolies.

The extent to which a business is public is a matter of law to be determined by the courts upon the application of their own tried tests to the situation. Whether a business is public or not depends upon the situation of the general public with respect to it. Are there enough of such purveyors to serve the public? If so, there will be virtual competition; if not, there will be virtual monopoly. In all of the businesses discussed in this chapter competition, although from a legal point of view possible, is from the economic point of view improbable. So far as one can see, virtual competition is at an end in these great industries, and virtual monopoly will henceforth prevail. Therefore it must be said that the public has now an interest in the conduct of these businesses by their owners; they are

8 Acc. New York & C. Exchange v. Chicago Bd. of Trade, 127 Ill. 153, 19 N. E. 855, 11 Am. St. Rep. 107, 2 L. R. A. 41 (1889); Frurman v. Gold & S. Tel. Co., 32 Hun (N. Y.), 4 (1884); Smith v. Gold & S. Tel. Co., 42 Hun (N. Y.), 454 (1886).