in its nature, it is none the less real, and the law must step in or there will often be grave oppression.

57. Water works as an example.

A modern example of an employment which is public because it enjoys a virtual monopoly is that of maintaining water works. One of the earliest needs of a community is a supply of water for domestic uses; and it has been always obvious that this is a public utility in a true sense of that term. Accordingly it was conceded from the first that the situation demanded a coercive law; but the extent to which that law took the disposition of the business out of the discretion of the corporations which provided the supply was not appreciated. Haugen v. Albina Water Company1 is a late illustration. The defendant company laid a main through Tillamook street upon which the applicant lived, but the defendant from the first refused to supply water to persons living between the east line of the township and Fourteenth street, within which limits the plaintiff resided.

Mr. Justice Lord said in part: "It must be conceded that the defendant is engaged in a business of a public and not of a private nature, like that of ordinary corporations engaged in the manufacture of articles for sale, and that the right to dig up the streets and place therein pipes or mains for the purpose of conducting water for the supply of the city and its inhabitants, according to the express purpose of its incorporation and the business in which it is engaged, is a franchise, the exercise of which could only be granted by the State, or the municipality acting under legislative authority. In such case, how can the defendant, upon the tender of the proper compensation, refuse to supply water without distinction to one and all whose property abuts upon the street in which its pipes are laid? If the supplying of a city or town with water is not a public purpose,

121 Oregon, 411, 28 Pac. 244, 14 L. R. A. 424, B. & W. 34 (1891).

it is difficult to conceive of any enterprise intrusted to a private corporation that could be classed under that head."

Various elements combine to make the business of supplying water to a community a public calling. Perhaps the chief of these is the natural limitation of the sources which makes the interposition of the State in aid of the enterprise necessary. The method of distribution through pipes requires the permission of the local authorities in order to lay the pipes in the public streets. All this makes competition with the established company improbable, if, indeed, it does not make it impossible. At all events, monopoly in this service is so founded in the nature of things that competition there is all but unknown.2

2 The following cases, among many others, hold water companies to be in public calling:

United States-Spring Valley Water Works v. Schottler, 110 U. S. 347, 28 L. Ed. 173, Sup. Ct. 48 (1884); New Orleans Water Works v. Rivers, 115 U. S. 674, 29 L. Ed. 525, 6 Sup. Ct. 273 (1885); Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 41 L. Ed. 1165, 17 Sup. Ct. 718 (1897); Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 46 L. Ed. 1132, 22 Sup. Ct. 820 (1902); San Diego L. & T. Co. v. Jasper, 189 U. S. 439, 47 L. Ed. 892, 23 Sup. Ct. 571 (1903); Tampa Water Works Co. v. Tampa, 199 U. S. 241 (1905); National Water W. Co. v. Kansas City, 62 Fed. 853, 10 C. C. A. 653, 27 U. S. App. 165 (1894); Spring Valley Water Works v. San Francisco, 124 Fed. 574 (1903); Palatka Water Works v. Palatka, 127 Fed. 161 (1903).

Alabama-Smith v. Water Works, 104 Ala. 315, 16 So. 123 (1893); Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445, B. & W. 417 (1900).

California-Spring Valley W. W. v. San Francisco, 82 Cal. 286, 16 Am. St. Rep. 116 (1890); San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 663 (1897).

Florida-Tampa Water Works Co. (Fla.), 34 So. 631 (1903). Illinois Wagner v. Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519 (1893); Rogers Park Water Co. v. Fergus, 178 Ill. 571, 53 N. E. 363 (1899).

Iowa Cedar Rapids W. Co. v. Cedar Rapids, 117 Iowa, 250, 91 N. W. 1081 (1902).

Kansas-Shiras v. Ewing, 48 Kan. 170, 29 Pac. 320 (1892).

Kentucky-Franke v. Paducah Water Supply Co., 88 Ky. 467, 11 S. W. 432, 718 (1892).

§ 58. Natural gas as an example.

The conditions surrounding the supply of natural gas present natural monopoly in a most extreme form. It is very common that the fields where the gas is found are at a considerable distance from the city which consumes it. It is then obvious that no private person can get at a supply for himself outside of the established company. These conditions made the inclusion of this service within the class of public employments certain. It is not surprising that we should find a case against a natural gas company applying the doctrines of the law of public calling in the extreme form. This case is, State ex relatione Wood v. Consumers Gas Trust Company, the relator applied for gas which was refused upon the ground that all the gas it could proF

Maine-Rockland Water Co. v. Adams, 84 Me. 472, 24 Atl. 840, 30 Am. St. Rep. 368 (1892); Kennebec Water District v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856 (1902).

Massachusetts-Lumbard v. Stearns, 4 Cush. 60 (1849); Burnett v. Com., 169 Mass. 417, 48 N. E. 758 (1897); Turner v. Revere Water Co., 171 Mass. 329, 56 N. E. 634, 68 Am. St. Rep. 432, 40 L. R. A. 657 (1898).

Missouri-McDaniel v. Springfield Water Works, 48 Mo. App. 273 (1892). Montana-State v. Butte City Water Co., 18 Mont. 199, 44 Pac. 966, 56 Am. St. Rep. 574 (1896).

Nebraska-American Water Works v. State, 46 Neb. 194, 64 N. W. 711, 50 Am. St. Rep. 610, 30 L. R. A. 44 (1895).

New Jersey-Olmstead v. Morris Aqueduct, 47 N. J. L. 311 (1885). New York-Silkman v. Water Comm'rs, 152 N. Y. 327, 46 N. E. 612, B. & W. 363 (1898).

North Carolina-Griffin v. Goldsboro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240, B. & W. 403 (1898).

Oregon-Haugen v. Albina Light Co., 21 Ore. 411, 28 Pac. 244, 14 L. R. A. 424, B. & W. Cases, 34 (1891).

Pennsylvania-Brymer v. Butler Water Co., 179 Pa. St. 231, 36 A. 249, 36 L. R. A. 260, B. & W. Cases, 330 (1897).

Tennessee-Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. St. Ry. 1841, B. & W. 468 (1897).

Texas-City Water Co. v. State, 33 S. W. Rep. 259 (1895).

England-Ward v. Folkestone Water Works Co., 24 Q. B. Div. 334

(1890).

* 157 Ind. 345, 61 N. E. 674, 55 L. R. A. 245, B. & W. 66 (1901).

vide was needed for its present customers, and the supply could not be increased even by sinking new wells.

The court held this excuse no justification. Mr. Justice Hadley, speaking for it, said in part: "The legal effect of the answer is that the relatrix shall have no gas because her neighbors, in common right, have none to spare. There can be no such thing as priority, or superiority, of right among those who possess the right in common. That the beneficial agency shall fall short of expectation can make no difference in the right to participate in it on equal terms. So if appellee has found it impossible to procure enough gas fully to supply all, this is no sufficient reason for permitting it to say that it will deliver all it has to one class to the exclusion of another in like situation. . The principle here announced is not new. It is as old as the common law itself. It has arisen in a multitude of cases affecting railroad, navigation, telegraph, telephone, water, gas, and other like companies, and has been many times discussed and decided by the courts, and no statute has been deemed necessary to aid the courts in holding that when a person or company undertakes to supply a demand which is 'affected with a public interest,' it must supply all alike, who are like situated, and not discriminate in favor of, nor against any."

4

59. Gas works as an example.

When the first works were constructed to furnish gas through mains laid in the public streets to various householders in the community at large, new conditions in the supply of illumination were created. Before that time illuminants had been commodities, bought and sold in packages, purchasable at vari

4 Citing Cent. L. J. 278; Haugen v. Albina, etc., Co., 21 Ore. 411, B. & W. Cases, 34; Olmsted v. Proprietors, etc., 47 N. J. L. 311; Stern v. Wilkesbarre Gas Co., 2 Kulp. 499; Chicago, etc., Co. v. People, 56 Ill. 365; 8 Am. Rep. 690; Nebraska Tel. Co. v. State, 55 Neb. 627, 634; Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63.

ous shops scattered over every city. The keepers of these shops had never been compelled to sell to all that required of them; why then, it was asked, must gas companies be compelled to do so? At first such doubts had some currency with the courts, but at the present time there is a general agreement that mandamus should issue to compel a recalcitrant company to supply an aggrieved applicant.

One of the earlier instances of this rule in the United States is to be found in Shepard v. Milwaukee Gas Light Company.5 The plaintiff complained of the refusal of the established gas works to supply him. The defendant claimed that under the circumstances of the case it was not bound to serve the plaintiff. Mr. Justice Smith held that the gas company was bound to sell its gas to every citizen of Milwaukee upon compliance with such regulations only as the company might rightfully impose. His argument was this: "It is sufficient for the purposes of this case to know that the company had the exclusive right to manufacture and sell gas, and that hence the only means of supply available to citizens was through the agency of the company. Corporations of this kind are not like trading or manufacturing corporations whose productions may be transported from market to market throughout the world. Its manufacture depends upon the consumption of the immediate neighborhood for its profit and success, and upon no other place. From the nature of the article, the objects of the company, their relations to the community, and from all the considerations before mentioned, it is to me apparent that the company is not at all analoto an ordinary manufacturing or trading corporation." What, after all, is that element in the situation which differentiates the vending of candles from the purveying of gas? Is it not this, that the box of candles may be sent from any factory into any market, a condition which preserves virtual competition in the sale of candles; while a thousand feet of gas can

gous

56 Wis. 539, 70 Am. Dec. 479 (1858).