616
The Green Bag
will not be disturbed in the enjoyment of it so long as public health and public morals do not suffer harm from the acts which the franchise permits.8 A carrier holding such a privilege, how ever, cannot use it to oppress the public by charging extortionate rates for the public service performed.9 The holder of a monopolistic privilege, therefore, can often be prevented from using it as an instrument of oppression. And the corporation may also be divested of its rights under proper exercise of the power of eminent domain,10 or may be divested of them to enable the legislature to give effect to a public trust which cannot be abdicated. 11 Cor porate privilege, notwithstanding the seemingly sweeping but actually in complete decision in the Darttnouth College12 case, thus found itself properly subordinated to public right.13 The convenient term "reasonable" is useful in the law because of its very vagueness. It is one of the openings by which ethical concepts trickle through the wall of technical verbiage into the cold territory of the law to crystallize into frozen formulas. In the law of negligence, the term "reason able care" originated from a notion of propriety rather than of legality. 'New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 S. C. 252; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. ed. 1036. 'Granger cases, 94 U. S. 113, 24 L. ed. 77; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 S. C. 418. l0West River Bridge Co. v. Dix, 6 How. 507, 12 L. ed. 535. "Illinois Central R.R. Co. v. Illinois, 146 U. S 387, 36 L. ed. 1018. "Supra. "Analogous results have been reached in patent law. Patent rights, like other property, are subject to the paramount claims of society, and the manner of their use may be regulated. Patterson v. Ken tucky, 97 U. S. 501. The government may maintain suits to set aside a patent when necessary, that the patentee may discharge public obligations, or even to enforce the rights of an individual. Mowry v. Whitney, 14 Wall. 434; United States v. Bell Tel. Co. 167 U. S. 224, 264; Same v. Same, 128 U. S. 315.
"Reasonable charges," likewise, are charges which are felt to be morally just rather than legally valid. And "reasonable restraint of trade" signifies nothing more nor less than an inter ference with competition which is not regarded as giving the public unfair treatment. In consequence of the decisions dating from Munn v. Illinois,1* a new concept of monopoly has arisen—a monopoly so unlike the old monopoly that it may safely be permitted to exist so long as it does not assert its monopolistic privilege in such a manner as to do the public any injustice. In Munn v. Illinois, a certain mode of corporate action was substantially condemned as unreasonable. Property devoted to a public use thereby becomes subject to public control for the common good. That principle was a point of departure for a new legal era, for we were then beginning to make over our law of monopoly. This new form of unlaw ful monopoly condemned by the law up to the time of the Sherman act was the monopoly of business oppres sion committed by means of unfair or unreasonable charges. The state could make contracts with corpora tions which took the form of char ters granting a franchise that involved complete suppression of competition, and the law did not declare such suppression of competition wrong ful, finding the remedy rather, in the case of public service corporations, in the prohibition of unreasonable chargesIn the light of these considerations the Sherman act, prohibiting all con. tracts, combinations, and conspiracies in restraint of trade, was to be interpreted. The phrase "in restraint of trade" was taken from the law of those covenants wherein one party promises to refrain "94 U. S. 113, 24 L. ed. 77.
