trivance. Neither would we consider it a fair swimming race if two men swam in separate tanks of liquid, one of the consistency of water and the other of our down south molasses. But whatever these theories do mean it is perfectly apparent that there are certain things men must have in order to live, and that the right to the possession of these things is recognized as fundamental in our system of government. It is likewise apparent that in addition to the bare necessities of life there are certain other things which a man must have in order even to pursue happiness; for in passing it must not be forgotten that our fathers did not urge that every man has a right to be happy, merely that he has a right to pursue that elusive condition. But he certainly has a right to his life and to his liberty, and it is a principle of the common law carried into our government that the right to private property shall exist.

Such being the case, I lay it down as my first fundamental proposition that,

All men should have the right to the acquirement at least of the necessities on reasonable terms, and that no man shall be permitted to indulge his selfish inclination to get as much as he can for his commodity or his service in such a manner as to deprive his fellow of the opportunity to get the necessities of life on reasonable terms.

I lay down this simple fundamental proposition and limit it to those things necessary to existence merely so that there may be no possibility of disagreement with reference thereto. This principle has always been recognized by society and it should be a function of government to see to it that this necessary requirement be observed. The books are eloquent both of the selfish inclinations of men and the right of the government to curb such selfish inclinations and the long line of decisions firmly establishing the right of government to curb monopoly is testimony to the effect that men in the past have indulged their selfish tendencies and that the concert of opinion in all societies has been that when they attempt to indulge them to their neighbors' disadvantage the function of government is to restrain them.

Why is it that in certain fields of endeavor it has never been found necessary for government to intervene in behalf of the individual to protect such individual from the aggres

sion of his neighbor? I think we will find it to be uniformly the case that where unrestricted competition has existed in any business or any industry the natural selfish inclinations of men have counterbalanced each other, and the selfish inclination of one man has served as a check against the selfish inclination of another and has made it unnecessary for government to intervene; but as economic forces become more complex and certain industries become bigger and stronger as Theodore Roosevelt says, "when the butcher becomes the packer"-then such business may begin to occupy a position in the state which gives too full play to the selfish inclinations of men and gives no opportunity for the operation of counter-selfish tendencies and the government must be called upon to check the selfish tendency which is being carried too far for the good of the community. It is well to observe, however, that in no case should the restraint put upon any business be any greater than is necessary to readjust the relationship between the social need and individual selfishness. In one case very mild governmental interference may bring about the result, and in another drastic measures must be resorted to. But in either event the interference of government is alike necessary, for when any agency has reached a position where those in charge thereof may indulge their selfish inclinations to the hurt of society, society, if it is awake, must and will intervene.

I lay down as my second fundamental proposition that, Monopoly in some form is essential to constitute an agency a public utility.

I do not mean to be understood by this as saying that all monopolies are necessarily public utilities. But certainly in every public utility there is between it and at least a part of its patrons the relationship of a monopoly. It is necessary, however, to have in mind the distinction between what we call natural monopolies and what we may be permitted to call artificial monopolies. It is not possible for every shipper of goods or every person who desires to travel by railroad to have the option as to what railroad he shall utilize. Two railroads cannot come to the door of every home in this country. The same may be said of gas companies, lighting companies, telephone companies and the like. These agencies that from the very necessities of the

case are to some of their patrons the only agency available for service, are what we mean by natural monopolies, and these, it is recognized by all students of monopolies, should be regulated and not interdicted. The second class, which we have called artificial monopolies, is composed of those agencies which have grown up or been produced by the combination of smaller agencies or the elimination of smaller agencies that could operate in the field served by the monopoly in its final form. Concerning this second class of monopoly there has of late been a considerable difference of opinion as to whether regulation or elimination shall be its fate. One school of politics urges that the economies brought about by large combinations are of so great an advantage to the public, if such monopoly is properly regulated, that they counterbalance the loss of individual intiative and free business intercourse which is the result of the operation of the small concern. While the other school contends that unless the agency be a natural monopoly it should not be permitted to exist because it destroys opportunity and would ultimately produce a nation of hired men. I have only attempted to put very broadly the difference as I understand it, but of course this very interesting and most important question cannot be discussed in a paper of this character, and, as we are applying ourselves only to natural monopolies concerning whose status all thinkers are agreed, we may proceed to the consideration of our subject without controversy, I believe, on this point.

I would define a monopoly, as I use the term in this discussion, as an agency which has assumed a position in society where those in charge thereof may indulge their selfish tendencies to the hurt of society or to the detriment of the rights of the members of society as such. I know this is a definition in very broad and general terms, and in fact it is impossible to define many of the terms we use except thus generally, but this does not relieve us from the necessity of defining them and we may not, as Socrates has pointed out, define a thing by merely citing an example. But while the definition must of necessity be thus general, great difficulty does not exist when we come to the practical aspect of regulation because there we may know the effect of the agency in question and easily determine whether or not its effect is such upon its patrons and the rest of society as to require its regulation. To be sure the deter

mination of this fact must be left to some authority, and it is no valid argument against regulation to say that the public authority, be it legislature, executor or court, may err in its determination of any question of fact. Such an objection merely amounts to a criticism of all government, and is the bare announcement that men even when acting officially make mistakes. But the determination of questions such as these must, as we have said, be left somewhere, and it is one of the weaknesses of human government that we must accept the mistakes of the final determining tribunal for the time being, resting secure in our belief that in the end justice will prevail.

It will readily appear from what has already been said that while general rules remain the same, and the general test should always be applied, yet particular agencies may with changing conditions become monopolies or utilities that theretofore were not, and this leads me to my third fundamental proposition which is that

Agencies become public utilities independent of a desire of the owners of such agencies and irrespective of any voluntary devotion of their property to public use.

This conclusion follows inevitably from our second proposition because if the conditions under which the agency acts determine its status and these conditions change from time to time a purely private business under one condition of society may become clothed with such an interest to the public under another condition of society that it becomes a public utility and subject to regulation. This point has been directly before the Supreme Court of the United States and was decided in accord with the position here assume in the important and leading case of Munn v. Illinois, decided in 1876 and reported in the 94th United States at page 113. The position which is assumed by those public utility representatives at the present time who urge that some action on their part, which may be considered a dedication of their property to the public use, is necessary to subject their property to regulation, was there assumed by Mr. Justice Field in a strong and able dissenting opinion which is probably the clearest argument in favor of the other side of this question that is anywhere to be found. But that court has ever since followed the doctrine there announced and we find Justice Field applying it rigorously in subsequent cases. In commenting upon the contention of

counsel in that case, the Supreme Court says in this connection:

"Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is one of recent origin, that its growth has been rapid and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long known and well established principle in social science and this statute simply extends the law so as to meet this new development of commercial progress. There is no attempt to compel these owners to grant the public an interest in their property but to declare their obligations if they use it in this particular manner."

The facts in this case showed that the elevator owners in Chicago whose business was sought to be regulated by the statute in question, had entered into the business without any design to subject their property to a public use. Yet the court said the way they used their property and the circumstances surrounding the business determined the status and not what the owners of the property said about it. I am quite aware that decisions of state courts may be found, and that there is a recent decision of the Commerce Court of the United States likewise, which incline strongly to the doctrine that the design of the owners of the property is to be considered in determining whether or not the property may be subject to regulation. Yet the position of these courts is diametrically opposed to the position of the Supreme Court of the United States and is contrary to sound economies and to rational principles of government and by reason of these facts cannot stand as law. Action of the legislature, of the executive or of the court may for the time being determine a question contrary to sound economic principles, but such action cannot finally determine the matter, and while it may for a time have a retarding effect, yet in the end a people will devise some method of satisfying their needs. It may dam the flood of human progress but the pent up stream will break its bounds and sweep the obstruction aside and usually the channel is washed deeper when the stream resumes its flow. It might be urged that because one may dispose of or refuse to dispose of his property as he sees fit, that the one owning bread could not be forced to sell it, and under certain