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the state in exercising police power may require the contract to be recorded.19 Similarly, if the patentee makes an unconscionable bargain it will not be enforced.20 The question here is, whether under the general law of restraint of trade the contracts, excluding competition in unpatented supplies, are illegal; not whether restrictions on use of patented articles may be imposed. By no possible construction of the patent right to exclude others from the invention, can an illegal monopoly in ordinary commodities be justified. The principal case, then, is a holding that the monopoly in the unpatented supplies was reasonable.

What is a monopoly that restrains trade unduly, is yet to be determined by the cases. The principal case presents a phase of the mooted problem whether monopoly maintained without unfair exclusion of competitors is lawful.22 A single contract to buy supplies from one only is lawful.23 But if the supplies are suitable for use only with mimeographs, a system of contracts with all mimeograph users monopolizes that market.24 The public injury, a question of degree for each case, is the first consideration in determining whether the monopoly is reasonable.25 The public as buyers are said not to be affected, for they need not buy if the price becomes too high. Any trade which the public as sellers had before the patent may now be as untrammelled as ever. The question, in light most favorable to the patentee, reduces to whether the public is entitled to competition in a market which the patentee alone created. The recent proprietary medicine cases, where the maker created his own market, answered that that was no excuse for thereafter controlling it.26 The general monopoly control, the stifling of potential competition of cheaper and better supplies, for no better reason than the power to do so, seems to be the objectionable feature.27

19 Allen v. Riley, 203 U. S. 347, 27 Sup. Ct. 95.

20 Pope Mfg. Co. v. Gormully, 144 U. S. 224, 12 Sup. Ct. 632. Elements of a hard bargain led the minority in the principal case to think it should be placed under this doctrine.

21 United States v. Standard Sanitary Mfg. Co., 191 Fed. 172. See 25 HARV. L. REV. 454.

22 See 25 HARV. L. REV. 73. Holmes, J., thought the essence of monopoly was unlawful exclusion of competition by a combination. See Northern Securities Co. v. United States, 193 U. S. 197, 409, 24 Sup. Ct. 436, 471.

23 Garden City Sand Co. v. Lanyon, 223 Ill. 616, 79 N. E. 313; Ferris v. American Brewing Co., 155 Ind. 539, 58 N. E. 701. But if designed to monopolize, the contract is invalid. Barataria Canning Co. v. Joulian, 80 Miss. 555, 31 So. 961. Similarly, though one restriction on the use of land sold that it be not used for liquor selling is reasonable, if it tends toward monopoly, it is invalid. Burdell v. Grandi, 152 Cal. 376, 92 Pac. 1022; Chippewa Lumber Co. v. Tremper, 75 Mich. 36, 42 N. W. 532.

24 If the supplies are not of special kind, a closer case seems presented, for then total monopoly is not built up. But the chief dissent in the lower federal courts from the doctrine of the Button-Fastener case, supra, came in declining to apply it to ordinary commodities. Cortelyou v. Johnson & Co., 145 Fed. 933.

25 See Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 406, 31 Sup. Ct. 376, 384; United States v. Standard Oil Co., 221 U. S. 1, 60, 31 Sup. Ct. 502, 516. 26 Dr. Miles Medical Co. v. Park & Sons Co., supra; Hill Co. v. Gray & Worcester, 163 Mich. 12, 127 N. W. 803. Cases contra in the federal courts had gone on the ground that the public was just as well off as before the proprietary medicines were produced. Dr. Miles Medical Co. v. Platt, 142 Fed. 606. That the article is not of prime necessity does not make the restraint reasonable. Nester v. Continental Brewing Co., 161 Pa. St. 473, 29 Atl. 102. Nor that the amount of trade restrained is small as compared with the total trade. Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307. 27 See Addyston Pipe & Steel Co. v. United States, 85 Fed. 271, 282, aff'd in 175 U. S.

INITIATIVE AND REFERENDUM. The question whether a law enacted by a reference to the people is void under the various state constitutions, has been repeatedly before the courts. Although the authorities are in conflict, the prevailing view appears to be that such a reference involves a delegation of legislative power and is, in consequence, void.1 In seven states, because of constitutional amendments, this question can no longer arise.2 These amendments have been attacked in the state courts on the ground that they cause the state government to become unrepublican3 in form and therefore violate the guarantee of the Federal Constitution. The state courts have, however, sustained these amendments. In a recent case the Supreme Court of the United States refused to review such a decision and dismissed the case for want of jurisdiction, saying that the enforcement of the constitutional guarantee was for Congress and not for the courts. Pacific States Tel. & Tel. Co. v. Oregon, U. S. Sup. Ct., Feb. 19, 1912.

The case is significant in that the court declined jurisdiction. The mere fact that a political question was involved will not explain this ruling. A political question is a question of fact which may arise in any kind of case and has no bearing on the jurisdiction of the court. The rule is merely that, instead of examining such a question on its merits or submitting it to a jury, the court will, if possible, find out how the political departments of government have decided it, and will then follow that decision. Such questions may relate, for example, to boundaries, to the admission of aliens, to the recognition of state 10 and foreign governments." In such cases, if no answer can be found, the court itself must treat it as any other question of fact, for the case before it must be concluded.12 Many cases involving political questions have been decided by the Supreme Court.13

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211, 20 Sup. Ct. 96. The Dr. Miles case is easily distinguishable in its facts. See 25 HARV. L. REV. 456. Competition in reselling was there cut off. But the consumers are injured in the principal case also, for prices of mimeograph work will be higher.

1 Barto v. Himrod, 8 N. Y. 483; Rice v. Foster, 4 Har. (Del.) 479; Santo v. State, 2 Ia. 165. See also Parker v. Commonwealth, 6 Pa. St. 507; State v. Copeland, 3 R. I. 33. But see contra, State v. Parker, 26 Vt. 357; Smith v. City of Janesville, 26 Wis. 291. It is clear that without a constitutional amendment, a reference cannot be demanded by the people.

2 By constitutional amendment, the initiative and referendum have been adopted in California, Maine, Michigan, Missouri, Montana, Oklahoma, and Oregon.

3 For a discussion of the meaning of "republican," see 24 HARV. L. REV. 141. "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature or of the Executive (when the Legislature cannot be convened) against domestic Violence." U. S. CONST., Art. IV, § 4.

5 Kadderly v. Portland, 44 Or. 118, 74 Pac. 710.

6 See WILLOUGHBY, THE CONSTITUTION, § 577. All questions raised in a case are questions of fact except those that relate to the law of the jurisdiction in which the case is tried. For example, a foreign law is a fact.

7 See 22 HARV. L. REV. 132.

8 Williams v. Suffolk Ins. Co., 13 Pet. (U. S.) 415.

9 See 22 HARV. L. REV. 221, 360–366.

10 Luther v. Borden, 7 How. (U. S.) 1.

11 Rose v. Himely, 4 Cranch (U. S.) 241.

12 See Ex parte Cooper, 143 U. S. 472, 12 Sup. Ct. 453, 508.

13 Texas v. White, 7 Wall. (U. S.) 700. See especially the dissenting opinions in Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. 890.

The jurisdiction of the Supreme Court turns on a different question. By the Judiciary Act,14 the Court is required to take jurisdiction of all cases decided in the highest courts of the various states in which the validity of a state statute was drawn in question on the ground of its repugnancy to the Constitution of the United States, and in which the decision was in favor of its validity. Obviously such a statute could be repugnant only to those clauses in the Constitution that limit state action. An appeal to any other clause would be dismissed for want of jurisdiction. In this respect, the Constitution has a fourfold aspect: (1) Some of its clauses deal with the surrender by the sovereign states of certain of their rights; 15 (2) other clauses merely give Congress the power to supersede the state laws on certain subjects; 16 (3) still other clauses deal only with the internal management of the central government; 17 and (4) finally still other clauses can be regarded only as forming a treaty between the sovereign states, beyond the power of the central government to enforce.18 Federal questions, directly involving the Constitution of the United States, can arise in the state courts only when some clause in the first of the four classes is brought in question, that is, when it is alleged that the state is attempting to do that which, by adopting the Constitution, it forever gave up the right to do. Therefore, by declining jurisdiction, the Supreme Court has conclusively shown that the federal guarantee of a republican form of government is not a direct limitation upon state action. In this sense it may be compared to the clause authorizing Congress to establish uniform laws on the subject of bankruptcy throughout the United States. Until Congress moves, each state remains quite free to enact its own bankruptcy laws. It follows then as a necessary consequence from the principal case that until Congress acts, each state is quite free, as far as the federal judiciary is concerned, to adopt any form of government, republican or unrepublican in character.

Difficult questions may arise if Congress attempts, by legislation, to regulate the state governments. It would then be the duty of the court to decide (1) whether such acts were authorized by this guarantee; and if so, (2) whether Congress or the court shall define the limits of this

14 U. S. REV. STAT., 1878, tit. XIII, c. 11.

15 Familiar examples are the right to pass ex post facto laws, and the right to impair the obligation of contract. U. S. CONST., Art. I, § 10. And also the rights surrendered by the Fourteenth Amendment. These clauses are self-executing, and thereby become the supreme law of each state. Dodge v. Woolsey, 18 How. (U. S.) 331.

16 Under these clauses the acts of Congress become the supreme law of each state. The Constitution is involved only in the question whether these acts themselves are constitutional. The usual examples are the power of Congress to regulate interstate commerce and bankruptcy.

17 The first ten amendments are striking examples.

18 "A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." U. S. CONST., Art. IV, § 2. The Supreme Court has refused to issue a mandamus to the governor of the state and intimated that Congress has no authority to compel him to deliver up a fugitive from justice. See Kentucky v. Dennison, 24 How. (U. S.) 66, 109. But under another clause it has been held that Congress has power to pass fugitive slave laws. Alderman v. Booth, 21 How. (U.S.) 506.

power, that is, define "republican." From the language in the principal case it would seem that the court would support all measures declared by Congress necessary to maintain republican forms of government among the states.19

LIABILITY OF MUNICIPAL CORPORATIONS FOR NEGLIGENCE. Three functions of a municipal corporation can be distinguished: governmental; municipal; and commercial.1 In exercising the last of these the municipal corporation is clearly as liable for negligence as a private corporation; in the first, where it is performing as agent duties which the state has undertaken, such as preservation of the peace, by almost universal authority it is protected from liability as is the sovereign itself." It is in the case of its municipal functions, consisting of activities carried on primarily for the benefit of the inhabitants of that particular city, that the law is yet chaotic. The correct view, it is submitted, is to impose liability.

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Negligent injury may result from the use of property or acts of persons. As to property used for municipal functions, the municipality should be held to the same duty of care as in its private functions. The city has entered into relations which are within the scope of private law, trol and ownership of property, and it should be subject to the obligations usually attending such relations. It is true that the property is held for a public purpose; but in its municipal functions the corporation is not acting as an agent of the government and hence is not clothed with sovereignty. Why should one injured by a defect in a fire-engine house be differently treated from one injured in a municipal powerhouse? Justice demands a remedy for each; in each case allowing an action will furnish an incentive to greater efficiency in city administration; and though one activity is technically conducted for profit, both are in fact carried on for the benefit of the inhabitants of the municipality. The second way in which the municipality might be liable is for the torts of its negligent agents. It has been urged, however, that the doctrine of respondeat superior should not apply in the exercise of municipal functions, on the ground that this principle of agency is never properly employed except in business dealings, and the analogy of charitable institutions is suggested. While various reasons for the rule of respondeat superior have been given, in last analysis the explanation is ex

19 "The issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power.' See Pacific States Tel. & Tel. Co. v. Oregon, U. S. Sup. Ct., Feb. 19, 1912.

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1 This analysis, which is not clearly recognized by the cases or text-books, has been advocated by Professor Joseph H. Beale.

2 See DILLON, MUNICIPAL CORPORATIONS, 5 ed., §§ 1666, 1626–1636.

* See GOODNOW, MUNICIPAL HOME RULE, CC. 7, 8. The author has suggested applying this principle even to governmental functions, but there is scarcely any authority supporting this view.

4 No question of agency arises when the city is held for breach of "the duty of occupiers of fixed property to have it in reasonably safe condition." See POLLOCK, TORTS, 8 ed., 74, 75.

pediency; it is socially desirable to hold one who employs and controls another responsible for the torts of that other if in the course of the employment. Profit is immaterial, and the exception of a charitable institution is based on a special ground. Where followed, it has been limited so as to operate only against beneficiaries, it does not apply to religious societies, and the minority decisions refusing to recognize the exception at all are perhaps preferable.10 The rule of respondeat superior would seem, therefore, logically applicable to municipal functions. Its inherent justice" is as strong in their case as in that of commercial functions; and no distinction between the two seems possible on the ground of expediency.12

The authorities on this subject are conflicting. Municipal corporations are generally held for negligent defects in streets and bridges, 13 but not in New England. Dyer v. City of Danbury, 81 Atl. 958 (Conn.).14 The general exemption of quasi-municipal corporations from liability in respect to highways may be explained on the ground that in their case the duty is purely governmental; the state needs roads, and the county is its agent in caring for them. City streets, however, have peculiar and local uses, primarily for the benefit of the inhabitants of the city rather than of the state as a whole.15 In other municipal functions the liability of the corporation has not been generally recognized. It is submitted, however, that the cause thereof is the failure to make the often difficult yet sound distinction between governmental and municipal functions. The law on this question being still unsettled, it may be hoped that this distinction may ultimately be consistently made.16

See POLLOCK, ESSAYS IN JURISPRUDENCE, 114-131; DICEY, LAW AND PUBLIC OPINION IN ENGLAND, 280, note.

• POLLOCK, id. 126.

? For a discussion of this reason, see 42 CHIC. LEG. N. 122; 22 HARV. L. REV. 228. Hewett v. Woman's Hospital Aid Association, 73 N. H. 556, 64 Atl. 190.

• Mulchey v. Methodist Religious Society, 125 Mass. 487; Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951.

10 Kellogg v. Church Charities Foundation of Long Island, 128 N. Y. App. Div. 214, 112 N. Y. Supp. 566.

11 See Professor Wigmore, 7 HARV. L. REV. 405. The present tendency towards Workmen's Compensation Acts shows the conformity of the rule to modern ideas of social justice.

12 Many cases in apparent conflict with this conclusion are explicable on the ground that the seeming agent is really an officer of the state. See Johnson v. City of Somerville, 195 Mass. 370, 377, 81 N. E. 268, 272.

13 See DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 1690. Although generally the city has not ownership of the streets, but an easement and exclusive control, the distinction is but a formal one, and this class of cases can be properly put on the ground of the city's ownership and control of property, the first category suggested.

14 See DILLON, MUNICIPAL CORPORATIONS, § 1691. The expediency of the majority rule is illustrated by the fact that in New England a liability almost as broad has been imposed by statute. The principal case holds that such a statute does not refer to injuries caused by the falling of a rotten tree-limb. See Hewison v. City of New Haven, 34 Conn. 136, 143. Contra, Chase v. City of Lowell, 151 Mass. 422, 24 N. E. 212. The duty at common law, recognized by the majority rule, seems to include such an injury. McGarren v. City of New York, 89 N. Y. App. Div. 500, 85 N. Y. Supp. 861. 15 See DILLON, MUNICIPAL CORPORATIONS, §§ 1714-1716.

16 In the following cases the city was held either for negligent defects in its property or for the negligence of its agents: Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573 (fire engine house); City of Lafayette v. Allen, 81 Ind. 166 (fire engine); Ching v.

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