only be got by the consumer from the local gas company, a situation which presents an inevitable monopoly in the supplying of gas. The market is thus limited by the nature of the product. It is in that sense that the monopoly of the local company is natural, and it is for that reason that it is permanent. Experience proves that seldom in any community will competitive conditions prevail in the supply of gas, and never are these conditions lasting. This consideration must be at the basis of the universal holding at the present day that the business of gas making is one of the public services."

6 The following decisions hold the gas companies to be in public calling: United States-Gibbs v. Consolidated Gas Co., 130 U. S. 396, 32 L. Ed. 979, 9 Sup. Ct. 553 (1889); Memphis Gas L. Co. v. New Memphis, 72 Fed. 952 (1896).

California-Smith v. Capital Gas Co., 132 Cal. 209, 64 Pac. 258, 54 L. R. A. 769 (1901).

Illinois-Chicago Gas Light Co. v. People's Gas Light Co., 121 Ill. 530, 13 N. E. 169, 2 Am. St. Rep. 124 (1887).

Indiana-Coy v. Indianapolis Gas Co., 146 Ind. 655, 46 N. E. 17, 36 L. R. A. 535 (1897); Portland Nat. Gas Co. v. State, 135 Ind. 54, 34 N. E. 818, 21 L. R. A. 639, B. & W. 41 (1893); Rushville v. Rushville Nat. Gas. Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321 (1892).

Kansas-In re Pryor, 55 Kan. 724, 41 Pac. 958, 49 Am. St. Rep. 280, 29 L. R. A. 398 (1895).

Kentucky Louisville Gas Co. v. Dulaney, 100 Ky. 405, 38 S. W. 703, 36 L. R. A. 125, B. & W. 306 (1897); Owensboro Gas Light Co. v. Hildebrand, 42 S. W. Rep. 351 (1897).

Maine-Brunswick Gaslight Co. v. United Gas, etc., Co., 85 Me. 532, 27 Atl. 525, 35 Am. St. Rep. 385 (1893).

Maryland-Gas Light Co. of Baltimore v. Calliday, 25 Md. 1 (1866). Michigan-Williams v. Mut. Gas Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Rep. 266, B. & W. 298 (1884).

Montana-St. Louis v. St. Louis Gas Light Co., 70 Mo. 69 (1879).

New York-People v. Manhattan Gas Co., 45 Barb. (N. Y.) 136 (1865); Bath Gas Light Co. v. Claffy, 74 Hun (N. Y.), 638, 26 N. Y. Supp. 287 (1893); Bloomfield, etc., Natural Gas Light Co. v. Richardson, 63 Barb. (N. Y.) 437 (1872); Schmeer v. Gas Light Co., 147 N. Y. 529, 42 N. E. 202 (1895); Morey v. Metropolitan Gas Light Co., 38 N. Y. Sup. Ct. 185 (1874); New York Cent. R. R. Co. v. Met. Gas Light Co., 5 Hun (N. Y.), 201 (1875).

$60. Electric plants as an example.

In the present generation a new method of illumination by electricity was devised which involved distribution from a central plant by a system of wires radiating through the localities served a very expensive plant to install. The essential features of the electric business are so like the main conditions in the gas business, it was obvious that the same law of public service was to be enforced in this instance. Indeed, it is most significant that no electric light company has ever squarely denied that there rested upon it the primary obligation to serve all. All this is most significant; for it shows that the law of public service has now such general acceptation that in any new instance that is obvious it will be applied by the courts without hesitation. The latest case is Snell v. Clinton Electric Light Company, where the company refused to furnish electric light to the applicant until he paid the cost of the transformer. The real reason for the refusal was a business policy of the company to increase their operations by charging applicants for transformers unless the wiring of the house was done by the company itself. In the present case the wiring was done by outside parties, but the jury found that the residence was properly wired.

Ohio-Lanesville v. Gas Light Co., 47 Ohio St. 1, 23 N. E. 55 (1889). Pennsylvania-Pittsburg's Appeal, 123 Pa. St. 374, 25 Am. & Eng. Corp. Cases, 364 (1889); Hoehle v. Allegheny Heating Co., 5 Pa. Supr. Ct. 21 (1897); Bailey v. Fayette Gas, Co., 193 Pa. St. 175, 44 Atl. 251, B. & W. 412 (1899).

Washington-Faconia Hotel Co. v. Faconia Gas Light Co., 3 Wash. 316, 28 Pac. 516, 14 L. R. A. 669 (1891).

Wisconsin-Shepard v. Milwaukee Gas Co., 6 Wis. 539, 70 Am. Dec. 479

(1858).

The earlier decisions to the contrary no longer have any force but are interesting historically: McCune v. Norwich Gas Co., 30 Conn. 521, 79 Am. Dec. 278 (1864); Commonwealth v. Lowell Gas Co., 12 Allen, 75 (1866); Paterson Gas Co. v. Brady, 27 N. J. Law (3 Dutch), 245, 72 Am. Dec. 360 (1858).

7196 Ill. 626. 63 N. E. 1082, 89 Am. St. Rep. 341, 58 L. R. A. 284, B. & W. 311 (1902). [65]

In holding for the consumer Mr. Justice Carter stated the fundamental propositions involved in this way: "There is no statute regulating the manner under which electric light companies shall do business in this State. They are therefore subject only to the common law, and such regulations as may be imposed by the municipality which grants them privileges. Appellee, being organized to do a business affected with a public interest, must treat all customers fairly and without unjust discrimination. Both reason and authority deny to a corporation clothed with such rights and powers and bearing such a relation to the public the power to arbitrarily fix the price at which it will furnish light to those who desire to use it. The company was bound to serve all its patrons alike, it could impose on the plaintiff in error no greater charge than it exacted of others." It is noticeable that in this opinion only one of the cases cited is that of an electric light company; the other examples cited involve gas and water, telephone and telegraph, proof positive that in the mind of the court these all fall within one department of the law.

In this business of electric lighting one element in the conditions which produce monopoly is prominent, the absence of the substitute, that is, the cost to the consumer of shifting for himself if he is refused. No electricity at all can be produced by the smaller consumers without the installation of apparatus of great cost, operated thereafter at large expense. Moreover, this is a business where when the units are smaller the cost of production is greater by a surprising ratio, so that in ordinary conditions none of the larger consumers would go to supplying them unless the rates of the company were unreasonable. This state of affairs would put the patron at the mercy of the company, unless the law interposed and compelled the rendition of service upon a reasonable basis." 8

8 The following decisions, among others. hold the electric companies to be in public calling:

TOPIC D.-MONOPOLY OF THE ESTABLISHED PLANT.

§ 61. Monopoly due to established plant.

Medieval conditions have passed away, and the causes which contributed then to the carrier's monopoly have ceased to operate; but others of still greater force have taken their place. In the case of the important carriers to-day-the railway, the street railway, the express company, the steamship line-the enormous amount of money invested discourages and prevents competition. The amount of money necessary to be raised and put at risk in order to enter upon the business of carriage is too great to subject it to competition with an already established and successful enterprise. Even when an investment is made, a competing line of railroad built or a new express company organized, it soon becomes apparent that competition is ruinous to one if not to both of the enterprises, and consolidation results, bringing monopoly again.

The magnitude of the investment required is not the only thing that deters competition. The fact that a long-established railroad or express company has a valuable plant which has been built and improved from year to year makes it almost impossible, by the expenditure of any reasonable amount of money

United States-Capital City Light Co. v. Tallahassee, 186 U. S. 401, 46 L. Ed. 1219.

Illinois-Snell v. Clinton Electric Light Co., 196 Ill. 626, 63 N. E. 1082, 89 Am. St. Rep. 341, 58 L. R. A. 284, B. & W. 311 (1902), (reversing 95 Ill. App. 552).

Massachusetts-Opinion of Justices, 150 Mass. 592, 24 N. E. 1084

(1890).

New York-Andrews v. Electric Light Co., 24 N. Y. Misc. Rep. 671, 53 N. Y. Supp. 810 (1898); Gould v. Edison Electric Co., 29 N. Y. Misc. 241, 60 N. Y. Supp. 559, B. & W. 308 (1899); Moore v. Champlain Electric Co., 88 N. Y. App. Div. 289, 85 N. Y. Supp. 37 (1903).

Ohio-Cincinnati R. R. v. Bowling Green, 57 Ohio St. 336, 49 N. E. 129, 41 L. R. A. 422, B. & W. 44 (1897).

Pennsylvania-Mercur v. Media Electric Light Co., 19 Pa. Supr. Ct. 519

(1902).

England-Metropolitan Electric Co. v. Ginder (1901), 2 Ch. Div. 799.

to provide a new enterprise with a plant equally effective. Still more, the establishment of a prosperous business and the building up of a good will contribute greatly to make any possible competition ineffective. Not only is the good-will of an established business a valuable asset which the new enterprise cannot duplicate; a great and long established business can be much more cheaply and economically conducted than any new business, however great its capital and able its management. All these causes contribute to the virtual monopoly of the carrier of to-day.

§ 62. Telegraph service as an example.

Ever since the introduction of the telegraph the situation has required special law. The applicant is confronted by a company whose lines spread over great areas of the country, so that unless he is served by the company in question he usually has no method to shift for himself. Generally there is no substitute.

The invention of the telegraph came at a time, about the middle of the nineteenth century, when the public callings that were recognized by the courts were so few that, naturally, it was not realized that such a department of the law existed. But the need of dealing with this new agency upon the basis of requiring public service was from the first so pressing that with some violence to the facts the public telegraph was held a common carrier. In truth the only similarity between these businesses is that in both the obligation to serve all that apply is a necessary condition, that is, both callings are public in their

nature.

In one case at least the public character of the telegraph system is rested finally upon the dependence of the public upon the established system. In Ayer v. Western Union Telegraph Company, in declaring telegraph companies to be public call

179 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353 (1887).