string wires in the City of Owensboro was granted under a charter which expressly reserved the right to repeal by subsequent act of the municipal legislature. In the face of this authority and presumably with knowledge of it, the company has entered upon the streets and made use of them for the purposes intended. Holding its grant subject to the superior right of the City to end it, I think the subsequent repealing ordinance was within the power of the municipality."

In Grand Trunk Western Railway Company against the City of South Bend,1 the municipality had granted the company a franchise to lay a double track on certain streets, and in so doing had failed to reserve specifically any right to alter or repeal the grant. After the company had built and operated the double track over a large part of the distance, the City sought to repeal the ordinance, to the extent of taking away any right to maintain more than one track over the franchise route. This action was sought on grounds of the safety and convenience of the major portion of the public, and justification was claimed under the "police power" to which every franchise is impliedly subject. The majority of the Court held that the City had the power to regulate the use of the franchise, but not to destroy it or take it away, and that the company had a vested right which the City's subsequent acts threatened to im1227 U. S. Reports, page 544.

pair. From this view Justices Hughes and Pitney again dissented.

Upon the question of the regulative power of government to require extensions and additions to the facilities afforded by franchise-holding public utilities, Justice Hughes declared, in Union Lime Company against the Chicago & Northwestern Railway Company:1

It is urged, further, that the statute is necessarily invalid because it establishes as the criterion of the Commission's action the exigency of a private business. This objection, however, fails to take account of the distinction between. the requirements of industry and trade which may warrant the building of a branch track and the nature of the use to which it is devoted when built. A spur may, at the outset, lead only to a single industry or establishment; it may be constructed to furnish an outlet for the products of a particular plant; its cost may be defrayed by those in special need of its service at the time. But none the less, by virtue of the conditions under which it is provided, the spur may constitute at all times a part of the transportation facilities of the carrier which are operated under the obligations of public service and are subject to the regulations of public authority. As was said by this court in Hairston v. Danville & Western Ry. Co.: "The uses for which the track was desired are none the less public because the motive which dictated its location over this particular land was to reach a 1233 U. S. Reports, page 211.

private industry, or because the proprietors of that industry contributed in any way to the cost." There is a clear distinction between spurs which are owned and operated by a common carrier as a part of its system and under its public obligation and merely private sidings.

While common carriers may not be compelled to make unreasonable outlays, it is competent for the State, acting within the sphere of its jurisdiction, to provide for an extension of their transportation facilities, under reasonable conditions, so as to meet the demands of trade; and it may impress upon these extensions of the carriers' lines, thus furnished under the direction or authority of the State, a public character regardless of the number served at the beginning. The branch or spur comes into existence as a public utility and as such is always available as localities change and communities grow. The Supreme Court of Wisconsin has left no doubt with respect to the public obligations imposed upon the carrier in relation to the spurs and branches to be provided under the statute in question, and we find no ground for the conclusion that this enactment was beyond the State power.

CHAPTER X

PREJUDICIAL RESTRAINT OF TRADE AND THE NEED FOR CERTAINTY IN THE ANTI-TRUST ACTS

JUSTICE HUGHES went to the Supreme Court from the forum of public affairs. He had often, in public addresses, given expression to his views as to the advisable form and scope of the statutes aimed at oppressive combinations in restraint of trade, and the means of making such enactments workable, understandable, and effective. Perhaps for the reason that he had thus recently been active, in the political sphere, in the formulation of policy-determining opinion as to what the law of the subject ought to be, he was not, during the months first following his translation to the judicial sphere, assigned to prepare opinions of the Court on questions of what the law was under the enactments then in force. Upon issues of the inherent fairness and permissibleness of challenged methods of competition with trade rivals, he prepared several opinions to which reference will be made in this chapter; but upon issues involving the interpretation of the Sherman Anti-Trust Act, his participation was not reflected by the preparation of published opinions.

In 1908 he had declared 1 that "the battle for free institutions has been a struggle against special privilege." At Chicago in the same year he had said 2 that

...

We desire to put an end to unfair practices, unjustifiable preferences, and oppressive proceedings by which, apart from proper economic advantages or superior skill in industry, rivals are barred from equal opportunities and thrust out of the way or destroyed. . . . In a free country it is intolerable that one should be denied equal access to markets by discriminating rates or allowances, or that he should be the victim of a conspiracy to deprive him of his business, or that he should be crushed by the misuse of large aggregations of capital in unfair competition. Laws, State and Federal, should be as definite as possible, and should apply with becoming precision to the practices sought to be reached. . . . It is possible and advisable in dealing with this subject that there should be a more explicit and appropriate statement than we now have in the Sherman Act; that fair agreements as to railroad rates which may receive the approval of the Interstate Commerce Commission, and that associations and agreements for reasonable and obviously proper purposes, should not be included in a sweeping condemnation; that it should point with a more definite aim at the evils which afflict inter

Address before the Republican Club of the City of New York on January 31, 1908.

Address before the Union League Club of Chicago on February 22, 1908.