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Subject Area: Law
Topic: The American Revolution and Constitution

§ 127.: Monopolies—General propositions.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 127.

Monopolies—General propositions.—

As a general proposition, it may be conceded that the creation of a monopoly out of an ordinary calling is unconstitutional. But it will not do to say that all monopolies are void. Every man has, under reasonable regulations, a right to pursue any one of the ordinary callings of life, as long as its pursuit does not involve evil or danger to society. And a law which granted to one man, or a few individuals, the exclusive privilege of prosecuting the trade, would be in violation of the constitutional rights of those who are prohibited from pursuing the same calling. This is clear. Mr. Justice Field of the Supreme Court of the United States has presented this proposition in very forceful language in the case of the Butchers’ Union Co. v. Crescent City Co.1 The late justice said:—

“As in our intercourse with our fellow-men, certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’—that is so plain that their truth is recognized upon their mere statement—‘that all men are endowed’—not by edicts of emperors, or decrees of Parliament, or acts of Congress, but ‘by their Creator, with certain inalienable rights’—that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime—‘and that among these are life, liberty and the pursuit of happiness, and to secure these’—not grant them, but secure them—‘governments are instituted among men, deriving their just powers from the consent of the governed.’ Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them without let or hindrance, except that which is applied to all persons of the same age, sex and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. * * * In this country it has seldom been held, and never in so odious a form as is here claimed, that an entire trade and business could be taken from citizens and vested in a single corporation. Such legislation has been regarded everywhere else as inconsistent with civil liberty. That exists only where every individual has the power to pursue his own happiness according to his own views, unrestrained, except by equal, just and impartial laws.”

This constitutional right of the citizen to pursue any occupation he may choose, which is not inherently and necessarily wrongful or injurious to society, subject only to reasonable police regulations for the protection of individuals and of society against incidental wrongs and injuries, has recently been confirmed by the New York Court of Appeals, in the Ticket Scalpers case,1 of which a full account is given in a preceding section,2 and to which the reader is referred for the details. Suffice it here to repeat, that one of the grounds, upon which the Court of Appeals pronounced the law unconstitutional, was that it denied to individuals the right to pursue a business, which was not inherently fraudulent or wrongful, and granted to certain persons, the agents of transportation companies, the exclusive privilege or monopoly of prosecuting the business of selling transportation tickets. The authorities, however, are not unvarying in their deductions from the application of these general principles, which are universally conceded to be sound, to the facts and law of a particular case, as will be more fully explained in subsequent sections.

When, on the other hand, the State bestows upon one or more the privileges of pursuing a calling, or trade, the prosecution of which is not a common natural right because it cannot be prosecuted without the aid of a legal privilege, a lawful monopoly is created, but no right of the individual is violated; for, with the abolition of the monopoly thus created, would disappear all right to carry on the trade. The trade never existed before as a lawful calling. Such monopolies are valid, and free from all constitutional objections.1 The grant of exclusive franchises is a matter of relatively common occurrence, and is rarely questioned.

[1]111 U. S. 746, 756, 757.

[1]People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116.

[2]§ 123.

[1]Cooley on Torts, pp. 277, 278.