dictions, the grant of a monopoly in the removal of such substances has been dependent upon the ground that this is not such a trade or business as is recognized by law. In others, however, the work of the scavenger, at least in relation to substances not in themselves noxious, is recognized as a lawful trade and calling and as such entitled to the usual protection against monopoly grants. An ordinance has accordingly been held invalid that attempts to confer on city scavengers a monopoly in the cleaning of privy vaults and cesspools located on private premises. By the weight of authority, however, though the cases are divided, the settled doctrine is that as to those substances which are in themselves nuisances, and for the protection of the public health require speedy and prompt abatement and removal by the city, or someone by it authorized to perform the work, the exercise of the power is in its nature a public function, to be engaged in by the city in its own behalf or by the employment of such agencies as will best accomplish the desired result, and that regarding such matters the granting of an exclusive privilege by the city to one individual for the removal of such unwholesome substances is not an unlawful exercise of power, nor does it conflict with the principle of law opposed to the creation of monopolies or an invasion of personal rights. In accordance with this principle, the city may lawfully grant an exclusive right to remove and dispose of garbage and house offal which is at the time offensive or unwholesome, or which has in fact been rejected and discarded as of no further use for any beneficial purpose for food or otherwise. On the other hand, many authorities hold that it is not competent for the city, as a police regulation, to

Kan. 757, 39 Pac. 710, 27 L.R.A. 545; 28 L.R.A. 679 and note; In re Lowe,
State v. Payssan, 47 La. Ann. 1029,
17 So. 481, 49 A. S. R. 390 and note.
Note: 21 L.R.A. 831.

As to the municipal power, see MUNICIPAL CORPORATIONS.

1. Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 97 A. S. R. 676, 57 L.R.A. 895.

54 Kan. 757, 39 Pac. 710, 27 L.R.A. 545; State v. Robb, 100 Me. 180, 60 Atl. 874, 4 Ann. Cas. 275 and note; In re Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351; Smiley v. McDonald, 42 Neb. 5, 60 N. W. 355, 47 A. S. R. 684, 27 L.R.A. 540 and note; Iler v. Ross, 64 Neb. 710, 90 N. W.

Notes: 50 U. S. (L. ed.) 204 et 869, 97 A. S. R. 676, 57 L.R.A. 895 seq. 21 L.R.A. (N.S.) 831.

See supra, par. 5 et seq.

2. In re Lowe, 54 Kan. 757, 39 Pac. 710, 27 L.R.A. 545; State v. Hill, 126 N. C. 1139, 36 S. E. 326, 50 L.R.A. 473.

Note: 21 L.R.A. (N.S.) 831, 832 et

seq.

3. Landberg v. Chicago, 237 Ill. 112, 86 N. E. 638, 127 A. S. R. 319, 21 L.R.A. (N.S.) 830 and note; Walker v. Jameson, 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 49 A. S. R. 222,

and note.

Notes: 2 L.R.A.(N.S.) 830 et seq.; 1 Ann. Cas. 849.

See supra, par. 8.

4. State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L.R.A. 279; Landberg v. Chicago, 237 Ill. 112, 86 N. E. 638, 127 A. S. R. 319, 21 L.R.A. (N.S.) 830 and note; State v. Payssan, 47 La. Ann. 1029, 17 So. 481, 49 A. S. R. 390 and note.

Note: 1 Ann. Cas. 849.

5. State v. Orr, 68 Conn. 101, 35

grant a monopoly to one individual, by contract, to enter on the private premises of the inhabitants of the city, and at their expense collect and remove those innoxious substances, such as ashes, cinders, or other substances not in themselves nuisances, but which, if accumulated in large quantities, would become such. Hence, an ordinance is void where it attempts to grant to a single contractor who will pay for it the exclusive privilege of collecting and shipping manure in the city, with the effect of destroying legitimate business in that article. Some authorities do not consider garbage a nuisance per se, and hold invalid ordinances that grant monopolies in the removal of garbage from private premises in so far as it includes refuse animal and vegetable matter which has not been abandoned as worthless and is not in an unsanitary or offensive condition, particularly when suitable for use as food for animals or otherwise, or where the person accused of violating the ordinance is in possession of such substance as agent or vendee of the original owners. Other courts, however, while recognizing the rule that a municipal corporation has no power to treat a thing as a nuisance which cannot be one, apply to these cases the equally well settled rule that it has the power to treat as a nuisance a thing that, from its character, location, and surroundings, may or does become such.10 These courts accordingly hold that a municipal contract or ordinance vesting in a single contractor the exclusive right to remove garbage and house offal does not create an unlawful monopoly, without regard to the condition of the substances or the fact that certain persons are thereby prevented from deriving a revenue from the disposal of their own garbage, because the substances mentioned from their character and condition, if not already decayed, noxious, and deleterious to health when discarded, are extremely liable to become so unless promptly taken care of, and hence are proper subjects for the exercise of the city's police power in preventing and abating conditions injurious to health.11

Atl. 770, 34 L.R.A. 279; Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 97 A. S. R. 676, 57 L.R.A. 895.

6. Landberg v. Chicago, 237 Ill. 112, 86 N. E. 638, 127 A. S. R. 319, 21 L.R.A. (N.S.) 830 and note; In re Lowe, 54 Kan. 757, 39 Pac. 710, 27 L.R.A. 545; Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 97 A. S. R. 676, 57 L.R.A. 895 and note.

Note: 1 Ann. Cas. 849.

7. Landberg v. Chicago, 237 Ill. 112, 86 N. E. 638, 127 A. S. R. 319, 21 L.R.A. (N.S.) 830; Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 97 A. S. 676, 57 L.R.A. 895 and note.

R.

8. State v. Orr, 68 Conn. 101, 35

Atl. 770, 34 L.R.A. 279; In re Lowe, 54 Kan. 757, 39 Pac. 710, 27 L.R.A. 545.

Note: 21 L.R.A. (N.S.) 831 et seq. 9. State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L.R.A. 279.

10. Walker v. Jameson, 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 49 A. S. R. 222, 28 L.R.A. 679. See generally, NUISANCES.

11. State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L.R.A. 279; Walker v. Jameson, 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 49 A. S. R. 222, 28 L.R.A. 679; State v. Robb, 100 Me 180, 60 Atl. 874, 4 Ann. Cas. 275. Note: 21 L.R.A. (N.S.) 831.

There is a similar diversity of opinion regarding grants of monopolies in the disposal of dead animals not slaughtered for food. There seems no doubt that a municipality may lawfully vest in a single person or corporation the exclusive right to remove such carcasses in time to prevent their becoming offensive, 12 particularly where the grant of such monopoly is coupled with the condition that the owner shall first have been given a reasonable time in which to remove them, and have failed to exercise his right.18 And it has been held that such a monopoly may be granted for taking and utilizing dead animals not slaughtered for food immediately upon death, before there is any decay and depriving the owner of the possession thereof at once.14

III. ELEMENTS OF ILLEGALITY IN COMBINATIONS

17. In General.—At common law, any combination or agreement that in its operation has or may have a tendency to restrain trade, to stifle competition in trade, to create or maintain a monopoly, or unnaturally to control the production or supply of, or to increase the price of, or to curtail the opportunity of obtaining, useful commodities, to the injury of the public or any considerable portion of the population of any locality, is regarded as contrary to just governmental principles, and inimical to the public welfare, and therefore against public policy and is denied enforcement at law or in equity 15 It is not essential that these results be actually produced, but it is sufficient if the agreement or combination directly tends toward preventing competition, raising prices or creating a monopoly.16 On the other hand, contracts that only partially restrict competition and trade and are otherwise reasonable usually do not produce the evils inherent in combinations of the above classes, unless the public interest is in some other way involved, and are therefore not unlawful.17 If the main agreement or combination is illegal in accordance with the

12. Schoen v. Atlanta, 97 Ga. 697, 25 S. E. 380, 33 L.R.A. 804; Landberg v. Chicago, 237 Ill. 112, 86 N. E. 638, 127 A. S. R. 319, 21 L.R.A. (N.S.) $30 and note; Walker v. Jameson, 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 49 A. S. R. 222, 28 L.R.A. 679; In re Lowe, 54 Kan. 757, 39 Pac. 710, 27 L.R.A. 545; Smiley v. McDonald, 42 Neb. 5, 60 N. W. 355, 47 A. S. R. 684, 27 L.R.A. 540 and note; Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 97 A. S. R. 676, 57 L.R.A. 895.

Note: 21 L.R.A. 833.

14. Note: 21 L.R.A. (N.S.) 833. 15. United States v. Trans-Missouri Freight Ass'n, 58 Fed. 58, 19 U. S. App. 36, 7 C. C. A. 15, 24 L.R.A. 73, reversed on another point in 166 U. S. 290, 17 S. Ct. 540, 41 U. S. (L. ed.) 1007; Stewart v. Stearns, etc., Lumber Co., 56 Fla. 570, 48 So. 19, 24 L.R.A. (N.S.) 649.

Note: 13 L.R.A. 770.

16. Anderson v. Jett, 89 Ky. 375, 12 S. W. 670, 6 L.R.A. 390; Charleston Natural Gas Co. v. Kanawha Natural Gas Co., 58 W. Va. 22, 50 S.

13. Schoen v. Atlanta, 97 Ga. 697, E. 876, 112 A. S. R. 936, 6 Ann. Cas.

25 S. E. 380, 33 L.R.A. 804.

Note: 21 L.R.A. (N.S.) 833.

154. And see infra, par. 22 et seq.

17. See infra, par. 19 et seq.

above principles, it follows that every contract whereby it is established, or its purposes carried into effect, is likewise unlawful and void, and cannot be enforced against either party, at law or in equity. Neither specific performance, rescission nor damages for its breach will be awarded. The court will not decree the nullity of such contract, but simply abstain from dealing with it or discussing any of its effects as between the parties, who will be left by the court where their own conduct has placed them.18 And it has been held that

where an action is commenced to enforce a contract that tends to monopoly or restraint of trade, the court will of its own motion take notice of its illegal character and refuse to grant relief even though both parties have treated the contract as valid.19 On the other hand it is well settled at common law that the contracts of an unlawful