People v. Budd

The main question upon this record is,, whether the legislation fixing the maximum charge for elevating grain, contained in the act, chapter 581 of the Laws of' 1888, is valid and constitutional. The act, in its first, section, fixes the maximum charge for receiving, weighing and discharging grain by means of floating and stationary elevators- and warehouses in this state, at five-eighths of one cent a bushel, and for trimming and shoveling to the leg of the elevator in the process of handling grain by means of elevators, “ lake vessels or propellers, the ocean vessels or steamships, and canal boats,” shall, the section declares, only be required to pay the actual cost. The second section makes a violation of the act a. misdemeanor, punishable by fine of not less than $250. The third section gives a civil remedy to a party injured by a violation of the act. The fourth section excludes from the operation of the act any village, town, or city having less than one-hundred and thirty, thousand population. The defendant, the manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh Valley Transportation Company for elevating, raising and discharging a cargo of corn from a lake' propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the elevator, the carrier was charged and compelled to pay four dollars for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed pursuant to an arrangement made since-the passage of the act of 1888, by a body of men known as the Shovelers’ Union, who pay the elevator one dollar and seventy-five cents a thousand bushels, for the use of the steam shovel, a part of the machinery connected with the elevator, operated by steam, and who for their services and the expense of the steam-shovel charge the carrier for each thousand bushels of grain shoveled the sum of four dollars. The defendant was indicted for a violation of the act of

The defendant on the trial raised the question of the •constitutionality of the act of 1888, and also insisted that, as to the alleged overcharge for shoveling, the facts did not show that the defendant had received anything for that ■service or that the cargo had been charged more than the actual cost, and excepted to the submission to the jury of that branch of the case. The trial judge overruled both points and submitted the case to the jury in both aspects, who found a general verdict of guilty, and thereupon the court imposed upon the defendant a fine of $250. It is now urged that, assuming the constitutionality of the act of 1888, the judgment should be reversed for the reason that no overcharge by the defendant for shoveling was proved, and also that the sum paid for shoveling was paid to the Shovelers’ Union, the defendant only receiving thereout, from the union, the rent agreed for the use of the steam-shovel There are two answers to this proposition. The words “ actual cost,” used in the statute, were manifestly intended to exclude any charge by the elevator beyond the sum specified for the use of its machinery in- shoveling, and the ordinary expenses of •operating it, and to confine the charge to the actual cost of the outside labor required for trimming and bringing the grain to the leg of the elevator. The purpose of the act •could be easily evaded and defeated if the elevator owners were permitted to separate the services, and charge for the use of the steam-shovel any sum which might be agreed upon "between themselves and the Shovelers’ Union, and thereby, ■under color of charging for the use of the steam-shovel, -exact of . the carrier a sum for elevating beyond the rate fixed by the act. The second answer to the proposition is

Passing this point, we come to the main question,, whether legislative power under the state Constitution exists in the legislature to prescribe a maximum charge for elevating grain by stationary elevators owned by individuals or corporations, who have appropriated their property to this-use and are engaged in this business. The ascertainment of the exact boundaries of legislative power under the rigid constitutional systems of the American states is in many cases attended with great perplexity and difficulty. The People have placed in the Constitution a variety of restrictions upon legislative power, and chief among them is that which ordains that no person shall be deprived of life, liberty or property without due process of law. There is but little difficulty in determining the validity of a statute under-this constitutional principle in cases where the statute assumes, to divest the owner of property of his title and possession, or to-actually deprive him of his personal liberty. The state may lawfully take the property or life of the citizen without infringe-

The act in question regulates the price of elevating grain, and the regulation affects the compensation which may be lawfully demanded for labor and personal services, as well as for the use of property. It fixes a maximum charge for labor and the use of property when combined, as they of necessity are, in the business of elevating grain. The operation of the statute is by its terms limited to the business carried on in cities and towns having apopulation of not less than one hundred and thirty thousand, practically to the ■cities of Buffalo, New York and Brooklyn. The circumstances, also, substantially restrict the application of the act to grain brought to Buffalo from the upper lakes by water, and there, by means of elevators, transhipped into canal boats and transported through the Erie canal and Hudson river to the harbor, of New York and there discharged by elevators into warehouses or ■ocean vessels. The business of transporting grain by the lakes, and thence by the Erie canal to New York, is one of great magnitude. The case shows that about one hundred and twenty millions of bushels of grain annually come to Buffalo from the west. The business of elevating grain at that point is mainly connected with lake and canal transportation. It is shown by official records that the receipts of grain at New York in the year 1887, by way of the Erie canal and Hudson river, during the season of canal navigation,exceeded forty-six million bushels, an amount very largely in excess of the amount received during the same period by rail and by river and coastwise vessels. The elevation of this grain from lake vessels .to canal boats takes place at Buffalo, where the case shows there are thirty or forty elevators, stationary and floating. How many of these ■elevators are actually employed in the business does not appear.

The case of Munn v. Illinois ( 94 U. S. 113 ) is a direct authority upon the question now before us. That case was-brought to the United States Supreme Court on a writ of error, to review a judgment of the Supreme Court of the State of Ulinois, which affirmed the constitutionality of a. statute of that state fixing a maximum charge for the elevation and storage of grain in warehouses in that state. The act was challenged as a violation of the constitutional guaranty in the Constitution of Illinois, protecting life, liberty and property expressed in substantially the same language as in the-Constitution of this state. The Supreme Court of the United States affirmed the judgment of the state court on the ground that the legislation in question was a lawful exercise of legislative power, and did not infringe the clause in the fourteenth amendment of the Constitution of the United States, “ nor-shall any state deprive any person of life, liberty or property, without due process of law.” The legislation in question in Munn v. Illinois was similar to, and is not distinguishable in principle from, the act (Chap. 581, Laws of 1888) now under-review. The question in that case was raised by an individual owning an elevator and warehouse in Chicago, which had.

It is an interesting question as to what consideration should be given by a state court to a decision of the Supreme Court of the United States upon a question of constitutional law, rendered in the exercise of its jurisdiction, where the point in judgment relates to the validity of a state statute, which is challenged on the ground that it deprives a party of life, liberty or property without due process of law, and the decision affirms the constitutionality of the statute. The jurisdiction of the Supreme Court of the United States to review the decision of a state court, sustaining a state statute which is alleged to be a violation of this constitutional principle, originated with the adoption of the fourteenth amendment of the Constitution of the United States, which, for the first time, introduced into the Federal Constitution the prohibition, “Kor ' •shall any state deprive any person of life, liberty or property without due process of law.” This was a new limitation in the Federal Constitution on the state governments. Prior to the adoption of the fourteenth amendment personal rights and rights of property were, as a rule, exclusively matters of •state cognizance, and the state courts were the ultimate tribunals for the determination of questions arising under the ■constitutional guaranty of life, liberty and property, which

The power of the legislature to regulate the charge for •elevating grain, where the business is .carried on by individuals upon their own premises, depends upon the question whether the regulation falls within the scope of what is called the police power, which is but another name for that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the state, necessary for the public welfare. The existence of this power is universally recognized. All property, all business, every private interest may be affected by it and be brought within its influence. Under this power the legislature regulates the uses of property, prescribes rules of personal conduct, and in numberless ways, through its pervading and ever-present authority, supervises and controls the affairs of men in their relations to each •other and to the community at large, to secure the mutual and equal rights of all, and promote the interests of society. It has limitations; it cannot be arbitrarily exercised so as to deprive the citizen of his liberty or property. But a statute does not work such a deprivation in the constitutional sense, simply because it imposes burdens or abridges freedom of action,- or regulates occupations, or subjects individuals or property to restraints in matters indifferent, except as they .affect .public interests or the rights of others. Legislation under the police power infringes the constitutional guaranty only when it is extended to subjects not within its scope and purview, as that power was defined and understood when the Constitution was adopted. The generality of the terms employed by jurists and publicists in defining this power, while they show its breadth and the universality of its pres

In determining whether the legislature can lawfully regulate and fix the charge for elevating grain by private elevators, it must be conceded that the uses to which a man may devote his property, the price which he may charge for such use, how much he shall demand or receive for his labor, and the methods of conducting his business are, as a general rule, not the subject of legislative regulation. These are a part of our liberty, of which, under the constitutional guaranty, we cannot be deprived. We have no hesitation in declaring that unless there are special conditions and circumstances which bring the business of elevating grain within principles which, by the common law and the practice of free governments, justify legislative control and regulationin the particular case, the statute of 1888 cannot be sustained. That no general power resides in the legislature to regulate private business, prescribe the conditions under which it shall be conducted, fix the price of commodities or services, or interfere with freedom of contract, we cannot doubt. The merchant and manufacturer, the artisan and laborer, under our system of government, are left to pursue and provide for their own interests in their own way, untrammeled by burdensome and restrictive regulations which, however common in rude and irregular times, are inconsistent with constitutional liberty.

The justification of the statute of Illinois regulating the charge for elevating and storing grain in the elevators of that state was placed in the Munn Oase upon that principle of the common law stated by Lord Hale in his treatise De Portibus Maris (1 Harg. Law Tracts, 78), that when private property is “ affected by a public interest it ceases to be juris ggrivati only.” The principle of the decision is stated with great

The control which, by common law and by statute, is exercised over common carriers is conclusive upon the point that the right of the legislature to regulate the charges for services in connection with the use of property, does not in every case depend upon the question of legal monopoly. From the earliest period of the common law it has been held that common carriers were bound to cany for a reasonable compensation. They were not at liberty to charge whatever sum they pleased, and even where the price ■of carriage was fixed by the contract or convention of the parties, the contract was not enforceable beyond the point of reasonable compensation. From time to time statutes have been enacted in England and in this country, fixing the sum which should be charged by carriers for the transportation of passengers and property, and the validity of such legislation has not been questioned. But the business of common ■carriers, until recent times, was conducted almost exclusively .by individuals for private emolument, and was open to everyone who chose to engage in it. The state conferred no franchise and extended to common carriers no benefit or protection, except that general protection which the law affords to all persons and property within its jurisdiction. The extraordinary obligations imposed upon carriers and the subjection of the business to public regulation were based on the character of the business, or, in the language of Sir "William Jokes, upon the consideration “ that the calling is a public employment.” (Jones on Bailments, Appendix.) It is only a public employment in the sense of the language of Lord Hale, that

It is said that the control which the legislature is permitted to exercise over the business of common carriers is a survival of that class of legislation which in former times extended to the details of personal conduct and assumed to regulate the private affairs and business of men in the minutest particulars. This is true. But it has .survived because it was entitled to survive. By reason of the changed conditions of society and a truer appreciation of the proper functions of government, many things have fallen

There are elements of publicity in the business of elevating grain which peculiarly affect it with a public interest. They are-found in the nature and extent of the business, its relation to. the commerce of the state and country, and the practical monopoly enjoyed by those engaged in it. The extent of the-business is shown by the facts to which we have referred. A large proportion of the surplus cereals of the country passes through the elevators at Buffalo and finds its way through the-Erie canal and Hudson river to the seaboard at Hew York,, from whence they are distributed to the markets of the world. The business of elevating grain is an incident to the business of transportation. The elevators are indispensable instrumentalities in the business of the common carrier. It is scarcely too much to say that, in a broad sense, the elevators perform the work of carriers. They are located upon or adjacent to the-waters of the state, and transfer from the lake vessels to the canal boats, or from the canal boats to the ocean vessels, the cargoes of grain, and thereby perform an essential service-in transportation. It is by means of the elevators that transportation of grain by water from the upper lakes to the seaboard is rendered possible. It needs no argument to show

It is upon these various circumstances that the court is called upon to determine whether the legislature may interfere and regulate the charges of elevators. It is purely a question of legislative power. If the power to legislate exists, the court has nothing to do with the policy or wisdom of the interference in the particular case, or with the question of the adequacy or inadequacy of the compensation authorized. “ This court,” said Chase, Oh. J., in the License Tax Oases ( 5 Wall. 469 ), “ can know nothing of public policy, except from the Constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative act. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must be addressed to the legislature. > Questions of policy there are concluded here.”

Can it be said, in view of the exceptional circumstances, that the business of elevating grain is not “ affected with a public, interest,” within the language of Lord Hale, or. that the case does not fall within the principle which permits the legislature to regulate the business of common carriers, ferrymen, innkeepers, hackmen and interest on the use of money ? It seems to us that speculative, if not fanciful, reasons have been assigned to account for the right ■of legislative regulation in these and other cases. It is said that the right to regulate the charges of hackmen springs from

The case of Munn v. Illinois has been frequently cited with approval by courts in other states. (Nash v. Page, 80 Ky. 539 ; Hockett v. State, 105 Ind. 250 ; C. and P. Tel. Co. v. B. and O. Tel. Co., 66 Md. 399 ; Davis v. State, 68 Ala. 58 .) In Wash v. Page it was held, upon the doctrine-of the Munn Case, that warehousemen for the public sale and purchase of tobacco in Louisville, exercised a public business and assumed obligations to serve the entire public, and could not exclude persons from buying or selling tobacco in their warehouses who were not members of the board of trade. In Mackett v. State, it was held that the relations which telephone companies have assumed towards the public imposed public obligations, and that all the instruments and appliances-used by telephone companies in the prosecution of the business were in legal contemplation devoted to public use. In Chesapeake, etc., Telephone Company v. Baltimore and Ohio Telegraph Company, legislation prohibiting discrimination in the business of telegraphing was upheld on the doctrine of the Munn Case.

The criticism to which the Munn Case has been subjected has proceeded mainly on a limited and strict construction and. definition of the police power. The ordinary subjects upon

The judgment should be affirmed.

I am unable to assent to the views -expressed in the opinion for the court in this case. Judge Peckham has very thoroughly examined and considered the ■question in People v. Walsh, a similar case, and I concur with him in that opinion. As his opinion exhaustively reviews the cases and the text books, I shall attempt no extended, nor .historical discussion, but will briefly state the grounds of my •dissent.

This legislation is sought to be upheld as constitutional upon the ground that it is within a proper exercise of the sovereign power to prescribe regulations, when demanded by the general welfare, for the common protection of all. It is said to fall within the scope of the police power of the state. If this is true of this measure, then I fail to see where are the limits within which the exercise of that power can be confined. This act undertakes to regulate the prices, which can be charged by an individual in the prosecution of his private business. Its provisions are attempted to be justified in this •case, because, it is said, the business in question is a virtual monopoly; owes its profitable existence to the benefit conferred by the Erie canal, and the interests of trade and commerce • and the welfare of the state demand that its charges should be regulated by the sovereign power. This plea for the •extension of the police power to the extent named, of interfering with the conduct of a legitimate private business enterprise, seems tome to find no support in reason, and it certainly tends to nullify that provision of the Constitution, which is supposed to guaranty to each individual that he shall not be •deprived of his life, or liberty, or property, without due process of law.

The learned judge, writing the opinion, concedes that the "uses to which a man may devote his property, the price which he may charge for such use, how much he shall demand or receive for his labor and the methods of conducting his business, are, as a general rule, not the subjects of legislative regulation. He well says that “ these are a part of our liberty, of which, under the constitutional guaranty, we cannot

It may be admitted that the use of the grain elevator is necessary to the grain shipper for the profitable or successful transaction of his business. But do such facts invest the grain elevating business, which the individual carnes on, with such a public character as tb give the public the right to regulate the charges which the owner may make ? If the ■question affected a corporation, deriving its franchises and powers from the state, a different case would be presented. But here we have the case of an individual, conducting his private business in a legitimate manner and owing nothing to the state for privileges, or powers, or assistance conferred. He exercises the right, common to all, of engaging in a legitimate business for his own profit and gain.

I understand it to be the general rule, that the individual has absolute liberty to pursue his avocations and to contract with respect to his property; subject, only, to the restriction that he may not interfere thereby with his neighbor’s rights or use of property. He is bound to use his own property so as not to injure his neighbor’s. That liberty I take to be guaranteed by the Constitution to him, and to be a most valuable right. What force or reason has the suggestion that the business of the individual sustains some important relation to a

I believe the constitutional rights of the. individual are directly attacked by this legislation. Under the pretense that his business has, by its magnitude and situation, become invested with a public interest, it is claimed to be brought within the right of the government to regulate. Where is the limit to the exercise of sovereign power, if such a pretext is considered a justification ? Of what use are our vaunted constitutional guarantees, if we may be deprived of property rights on so flimsy a pretext ? It is said that the remedy for such oppressive and unjust legislation is to be found at the polls. I do not think that to be the only resort of the citizen.

I cannot believe that the theory, or the frame of our form of government, involved the idea that so great a power should be lodged in the legislature.

If the door is opened to this species of legislation, what protection have we against socialistic laws % What is to prevent subsequent legislatures from interfering with any other kind of private enterprise, if, from improved methods in its conduct and for peculiar reasons, it appears to the legislative body to virtually monopolize that branch of business, and that the owner takes advantage of his diligence, or superior skill and advantages, to demand what to them seems an apparently high or even excessive price for his labor or property, of those who resort to him ? The legislature, in effect, says to the individual, when interfering to regulate the charges he may make in his business: It is true you are a private individual, engaged in a private and legitimate business, in the prosecution of which you are authorized and protected by the Constitution; but, nevertheless, we think, in the public interest, because your business has become so advantageous and so necessary to a large portion of the public, because of its superior facilities, that you shall not be allowed to pursue it, unless you reduce your charges to a rate fixed by us. As well may the legislature claim a right to interfere to reduce and regulate the charges which a combination of manufacturers has fixed for a certain line of goods.

It seems to me that the theory of such legislation is a startling departure from the true conception of governmental functions. They should work to protect and develop private rights and to secure to all individuals the uniform operation of the constitutional guarantees. The police power is incapable óf being stretched to reach such a case as this, if we have any respect- for the provisions of the Constitution. That power is properly exercised in the preservation of the private rights of individuals, in the maintenance of public order, in

This act, in my opinion, was an unconstitutional exercise of power by the legislature. Such legislation was not demanded by the general welfare, and it violates the social compact under which we live. It is a subversion of the constitutional guaranty. It is against such legislation that the constitutional guaranty was framed, and that the judicial power was intended by the Constitution to afford protection to the individual.

I think the judgment should be reversed and the appellant discharged.

The Federal Supreme Court has decided that a statute of the State of Illinois, which is somewhat similar to the one under consideration here, was a valid law so far as the Federal Constitution was concerned, and that it violated no right, privilege or immunity protected by that instrument.

A clause exists in the Constitution of this State which is similar to one of those in the Federal Constitution, under which the claim of invalidity was made and denied as to the Illinois statute. The case of Munn v. Illinois ( 94 U. S. 113 ) establishes the point that the Illinois statute there under discussion, as applied to the particular facts of that case, did not

The facts in these Flew York cases differ considerably, in certain particulars, from those in the Munn case; and if the principles decided in that case were upheld, it might still become of the greatest importance to distinguish these differences and to discuss and decide upon their materiality as applicable to the question of the subjection of the defendants to the provisions of this act. But the question which arises i/n Irnw/ne is based upon the assumption that the cases are substantially alike in their facts, and the question is this: In construing a clause in our state Constitution similar to one in the federal instrument, should we follow the interpretation of such clause as given by the federal court, which interpretation compels us to deny to these defendants the relief they ask for, although otherwise we are satisfied that they are justly entitled to that relief.

If any right, privilege or immunity claimed under tne Federal Constitution or laws be denied by this court, its decision is reviewable in the Supreme Court, and in such cases it is our duty to follow in the footsteps of that eornt and to be guided and controlled by its decisions. But in this case the right is claimed under our state Constitution, and in matters pertaining to its proper construction our decision is final, excepting that if, as construed by us, the Constitution or our laws deny the existence of some right or privilege claimed by a party by virtue of the Federal Constitution or laws, our decision is . reviewable by the . federal court not for the purpose of reviewing our construction of our own -Constitution or laws, but to see whether, under the Constitution or laws as construed by us, any right or privilege existing by virtue of the Federal Constitution or laws has been violated or denied, and, if so, to give it effect, notwithstanding the state law or Constitution. But where we deny no right or privilege claimed, and, on the contrary, assert and protect it, there is no review by the federal court possible.

When the privilege or immunity is claimed under our state

It is, perhaps, needless to inaugurate the discussion of the question by an expression of the very great respect we feel for the Federal Supreme Court, and for each of its distinguished and learned members, and yet in doing so we but give voice to the sentiments which, as we believe, possess judges and citizens alike throughout the land. It is only in the performance of our official duty that we venture to differ from that court regarding matters which we are bound to decide, and when there is an equal obligation to decide them in accordance with our own deliberate views.

The case of Munn v. Illinois ( 94 U. S. 113 ), has been .referred to, in our court but sparingly, as there has not been very frequent occasion for such reference.

It was referred to in Bertholf v. O’ Reilly ( 74 N. Y. 509 ); Boardman v. Lake Shore and Michigan Southern Railway Company (84 id. 157, 186); People v. King (110 id. 418, at 424, 428), and in Buffalo East Side Railroad Company v. Buffalo Street Railroad Company (111 id. 132). These are the only cases I have observed, although there may be others which have escaped my attention.

In Bertholf v. O’Reilly ( 74 N. Y. 509 ), it was decided, that the legislature has power to create a cause of action for damages' in favor of one who is injured in person or property by

In speaking of the police power, Andrews, J., in above case cited The Slaughter House Cases ( 16 Wall. 36 ), and Munn v. Illinois, to show how far courts have gone in upholding legislation affecting private rights and property as a due exercise of the police power residing within the state. He said those “ cases may perhaps be deemed to have carried the right of legislative interference with private rights and property to its utmost limit, but they illustrate" the scope of the police power in legislation.”

The legislation in question in the Bertholf case was placed upon the right of the legislature to control the use and traffic in intoxicating liquors, and its authority to impose liabilities upon those who exercise the traffic or who sell or give away intoxicating drinks, for consequential injuries to others, the ■court said, follows as a necessary incident. Such right of legislation as to the prohibition or regulation of the sale, etc., ■of intoxicating liquors comes within the narrowest definition of the police power, and is substantially denied by no one.

In the Bertholf case there was nothing which called for the approval or affirmance of the case of Munn, or the very broad principle asserted in and underlying that case. It was referred to, as stated in his opinion by Andrews, J., for the simple purpose of showing to what extent some courts had gone, and it was stated to be one where the right had been carried to its utmost limit, but the limit itself was neither approved or disapproved. Nothing in Boardman, v. Lake Shore, etc., Railway Company ( 84 N. Y. 157 , 186) is material upon the question. It was simply stated that the Munn case did not bear out the contention for which it was cited by the appellant.

In People v. King ( 110 N. Y. 418 , 424, 428) the question was, whether the law securing to colored persons the right to

The police power, it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. Ho one questions it in regard to either of those two important branches of government. The extent of' its proper exercise in such cases is open, however, to some-differences of opinion. The place of amusement of King was held to be so far public with reference to this specific power as to permit of its exercise, and the very point of the-decision was that the public had this right of resort to plaintiff’s premises by his own dedication, even including colored persons, upon payment of the prescribed fee.

Judge Cooley supports the legality of laws regulating-places for public amusement, such as theaters, etc., upon the-ground that they are properly the subject of police regula^ tion, as they are generally licensed by the State or municipality wherein they exist. (See Cooley on Torts, 285,) But I have-failed to observe any statute in this State which attempts to-limit the price which a theatrical manager shall be allowed to-charge for admission to his entertainments. Proper police-regulation and inspection, to the end that peace and góod order may be obtained and public morals reasonably protected, is one thing, while a power to limit compensation is another and far greater and more dangerous power, and the two powers are-not necessarily co-existent. The latter power is not only a. dangerous one, but it is not called for by the same principles which permit, and, indeed, demand the exercise of the former under a general right to regulate the manner, within reasonable rules, in which a man shall use his property so as not to improperly interfere with the proper enjoyment by his neighbor of his own property, or so as not to injure the public health or morals, and in order that proper safeguards may be-observed for escape in times of fire.

In the King Oase Judge Andrews said: “ The principle-

In Buffalo East Side Railway Company v. Buffalo Street Railway Company (supra) both parties were corporations. Bugeb, Oh. J., said: It was unnecessary to discuss the proposition with much fullness, as it was conceded by the appellant that the authority of the legislature, in the exercise of the police power, could not be limited by provisions in contracts between individuals or corporations, and the contract between the parties as to the rate of fare was held subordinate to the legislative power to regulate the fare to be charged bv the corporations.

The Munn Case proceeded upon the principle that the parties had devoted their property to a public use, because the productions of “ seven or eight great states of the west ” had to pass through their elevators for transhipment into vessels on their way to “ four or five states on the sea shore,” and that thus they had a “ virtual” monopoly of that business, which created a right, on the part of the state, to regulate or limit the amount of their compensation for such use. It was placed on the theory of an implied grant on the part of the owners of such property to the public to thus limit the compensation, and such grant was implied because the property was thus devoted by the owners to a public use.

Two factors seem to have entered into the proposition as developed by the court, one of which was the extent of the business, and the other that in its performance there was a “ virtual ” monopoly. The combination of extent of user and so-called virtual monopoly seems, in the mind of the court, to

The learned chief justice, who delivered the opinion of the court, after citing these instances, thus continued:

“ Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the cartman, or the hackney coachman, pursues a public employment and exercises a sort of public office, these plaintiffs in error do not. Therefore, it was held that the business done by the owners of the elevators or warehouses was such as to clothe their property thus used with a public interest, and it ceased to be juris jorwcoti only.”

I have examined, with very great care and attention, the various authorities cited by the court as illustrations of the principle laid down, and, with great diffidence, I am compelled to say, as the result of such examination, that it seems to me they do not justify the application of the principle to the case then before the court. (See Tiedeman on Limitations of the Police Power, 230.) If it be assumed that when one devotes or dedicates his property to a public use the public then has an interest in such use, and that, therefore, his compensation may be limited by law, still I deny that such devotion or dedication is made merely because the owner has embarked his property in a business in which large numbers of the public are interested in its use; and I also deny that any such person has a virtual or any monopoly in the business, without a grant thereof from the sovereign power, merely because the property is conveniently situated for the business, and it would cost a large amount of money to duplicate it. So long as every one is free to go into the same business, and

I contend that, within the subject now under review, the meaning of the phrase, “ devoting one’s property to a public use,” as evidenced in the cases cited by the learned chief justice, and also in other cases in this state, is that such devotion or dedication is made, when by reason of it the public thereafter have a legal right to resort to the property, and to use it for a reasonable compensation, or for such as the law provides, or else where some privilege or right is granted by the government, in which case the right of limitation is based upon and is really a part consideration for the grant.

In the one case the legal right to resort to and use the property by the public, so long as the owner chooses to remain in the business, springs from this dedication, and it is the ■criterion that is to decide the question whether the property has or has not been thus dedicated; and this right does not spring into existence merely because the business is such as interests a great number of the public, or because it is of large extent, or because there is no other property at that place which is or conveniently may be devoted to the same kind of business; while, in the other case, the right of limitation exists because some privilege or franchise has been granted to the ■owner by the sovereign power, an acceptance of which carries with it the burden of submitting to the demand for the service. As has been said, the right to regulate places of public amusement, such as theaters and the like, comes from another branch of the police power, and, as I believe, does not extend to the power to limit prices. The right to make use of the ■owner’s property, by reason of a dedication, has been held to have been created in the exceptional cases of a common carrier, the keeper of a common inn, and a common or public wharfinger, and, perhaps, in some others. These are ■exceptional cases, for they trench upon the well-grounded

The ancient right to regulate the toll which millers should charge rested on the right, at common law, which the lord of the-manor had to compel all his tenants to grind their corn at his-mill, and no one could set up a mill but by his license or. that of the crown, and with such license went the right of regulation, as to the tolls to be received. (See Cooley on Constitutional Limitations, 735; 15 Yiner’s Abr. 398, 399.) As to the interest on money and the right to regulate it, it was by the- • common law prohibited to any one to take any interest for the

As is said, there can be no legal1 objection to the power to direct the weight of a loaf of bread, for that is a mere police regulation, interfering with no man’s real liberty, and it is the same as if the length of a yard were declared by law or the weight of a ton. But I deny the right of any legislature in this country to limit the price for which an individual baker shall sell his bread per loaf, or the price per ton for which a coal dealer shall sell his coal, or the price which a tailor shall charge for his coat, or the shoemaker for his shoes. A common carrier exercises, it has been stated, a kind of public-office, and when a man devotes himself to such a calling, and holds himself out to the public as a common carrier, he thereby grants to the public such an interest in his business that each individual has the legal right to demand the carriage of his-property by the carrier, upon payment or tender of a reasonable compensation for carriage in the absence of a legal regulation thereof. (Allen v. Sackrider, 37 N. Y. 341 .) He-thus becomes a common carrier because of this dedication to the general public, and this legal right of the public to demand this service springs from such dedication. The same is true-of a public wharfinger or the keeper of a common inn. They were all called “ common ” in their several occupations, and were common because they held themselves out as such to the-public, and, as was said in some of the.old books, entered into-a general contract with the whole public to do the work, and hence arose the right of the public to call upon them to fulfill this contract. Ho such right of access to the premises of

There is no satisfactory ground, in my judgment, upon which the power may be based to regulate or limit the price of transportation by a common carrier, or the price of entertainment by an innkeeper, who is a private individual and who has received no privileges from the state of any kind. To say that the carrier (while a private individual) holds a kind of public office, and, therefore, his prices should be limited, is not, as it seems to me, a very accurate description -of his attitude to the public. He holds no office, public or private, within any fair meaning of such word —• and there is no reason, in justice or common sense, why his compensation -should be limited by law which would not hold good in the •case of every individual dealing with the public, and holding himself out as ready, willing and eager to sell his goods to all ■comers.

The rule as to private individuals who happened to be -common carriers or innkeepers, etc., was established in the ■earlier days of the law, and it was regarded by Lord Hale as most proper that individuals who followed such callings should be placed under state supervision and control. The habits, customs and general intelligence of the people of those days were far different fro,m those of to-day: and laws which might possibly be pardoned on account of ignorance, -sparseness of population, difficulties of communication, and

It must be constantly borne in mind that in those days the theory of a paternal government which was to watch over and protect the individual at every moment, to dictate the quality of his food and the character of his clothes, his hours of labor, the amount of his wages, his attendance upon church, and generally to care for him in his private life, was almost at its height.

The famous statute of the fifth of Elizabeth, chapter 4, concerning laborers, was in full force when Lord Hale wrote. (Lecky’s England in Eighteenth Century, vol. 6, p. 233.) That statute assumed to regulate the existence and determine the numbers of the artisans in the whole country. It provided how long one should work as an apprentice; how many there should be in proportion to journeymen ; where they should live,; under what circumstances move to another neighborhood ; how many hours they should labor, and for how long a time a journeyman should be employed; and, finally, it provided that wages should be assessed for the year by the justices of the peace, who were also directed to settle all disputes between masters and apprentices. By an act of the first of James I, chapter 6, the above act was extended by giving to the justices power to fix the wages, not only of journeymen and apprentices, but of all kinds of laborers and workmen.

During this time, also, there were statutes making it a felony to export wool from England, and the exporter of sheep, rams or lambs was liable to imprisonment, the forfeiture of all his property, and to have his left hand cut off for the first offense, and for the second offense to be adjudged a felon and to suffer death accordingly. (See 8 Eliz. Ch. 3; 13 and 14 Chas. 2, chap. 18.) „ Provisions were extant forbidding exportation of hides, raw or tanned leather, and many other things, and all for the supposed benefit of the kingdom or the various interests in whose favor the legislation was enacted. (Smith’s Wealth of Hations, by McCulloch, p. 292 et seq.) Laws were then in force which regulated down to the minutest detail the

In spealdng of the above-mentioned statute of Elizabeth, the late Mr. W. Stanley Jevons, in his little work on “ The State in Relation to Labour,” in the English Citizen Series (at page 34), says, that it was a monstrous law, and that, according "to the opinion of historians, it represented the triumph of the •craft guilds, that is, the medieval trade-unions, and that in operation it was, there is reason to believe, little more than a dead letter. In the same work the author says, that the justification of state interference in matters of private concern, ■ as in the inspection of certain kinds of food, etc.,.lies in the fact that government may properly interfere to prevent abuses in those special cases where it is impossible, or at least difficult, "for the buyer of goods to verify their character for himself. Inspection of factories is justifiable for the purpose of thereby protecting the health and morals of large masses of the people "who labor in them, and who, as experience has shown, are "unable to protect themselves. The work is a most able treat-ment of the question as to how far it is proper to interfere in "the general industrial department of the country. It is needless to say that such a law as is under consideration here, does "not fall under any of the conditions in which state interference "is regarded as proper.

But it was during the times when laws such as I have above •alluded to, were in force that Lord Hale lived and wrote. He was, without doubt, a very great lawyer, but he wrote regard"ing the law as it then existed, and when views of governmental "interference with the private concerns of individuals were • carried to the greatest extent; and he was naturally and necessarily affected by the atmosphere of the times in which he . lived; and his views as to the policy and propriety of laws involv

Tiedeman—in his work already cited — at the end of section 93, on page 238, in speaking of Lord Hale and his observations, and generally in regard to this power, says: “Lord Hale, therefore, cannot be cited in support of the doctrine-that the state may regulate the prices charged in a business which, from the circumstances, becomes a virtual monopoly. And even if he did justify such regulations, his opinions can hardly be set up in opposition to the rational prohibitions of the American Constitution. By all the known rules of constitutional construction, the conclusion must be reached that the regulation of prices in such a case is unconstitutional; and while the common law is still authority for the propriety and justification of laws which antedate the American Constitution, it cannot be cited to defeat the plain meaning of the" Constitution in respect to laws subsequently enacted.” (See, also, same author, p. 588.)

Judge Cooley, in his Constitutional Limitations (5th ed.), at page J39, gives four heads under which such regulations are admissible, and such a case as this comes under none of them. He says, in summarizing his own views as to when the property of the citizen could be said to be affected with a public use or interest, so that prices might be limited, that they were in four classes: (1.) When the business is one, the following of which is not of right, but is permitted by the state as a privilege or franchise, and under this head he includes such cases as lotteries, giving shows, keeping billiard tables for hire, etc. .(2.) Where the state, on public grounds, renders to the business special assistance by taxation or otherwise. (3.) Where, for the accommodation of business, some special use is aEowed to be made of public property or of a public easement. (4.) Where exclusive privileges are granted in consideration of some special return to be made to the

That learned author, in speaking on this same subject, says, in same volume, pages 737, 738, 739 : “ What circumstances shall affect property with á public interest is not very clear_ The mere fact that the public have an interest in the existence of the business, and are accommodated by it, cannot be sufficient, for that would subject the stock of the merchant and his charges to public regulation. The public have an interest in every business in which an individual offers his wares, his merchandise, his services or his accommodations to the public ; but his offer does not place him at the mercy of the public in respect to charges and prices. If one is permitted to take upon himself a public employment, with special privileges, which only the state can confer on him. the case is clear enough,” etc.

The case put by Lord Hale of the owner of a private wharf, which was the only one in á new port, being properly subjected to a limitation of his charges, because of an alleged monopoly, is spoken of by Cooley, and explained as grounded upon the use of public property under a license, as the title to the soil under the water in navigable streams is in the sovereign, and its use by a private person upon which to build a wharf is under the license of the crown.

Judge Cooley then says, at page 739 of his Constitutional Limitations, as follows: “ If, then, by public permission, one is making use of the public property, and he claims to be the only one with whom the public can deal in respect to the use of that property, it seems entirely reasonable that his business is affected with a public interest which requires him to deal with the public on reasonable terms.”

The right arises from the use of the property of the public, by the license of the public, or, in other words, by the license-of the crown, and thus the right of limitation attaches to such, user. It does not spring from any assumed monopoly arising

There is not the slightest proof in this case that the warehouse is built below low-water mark in the East river, on the-Brooklyn side, and so on land the title to which may be in the state. If it be thus built, then, perhaps, the state could ■compel its removal; but it has done or attempted nothing of the kind, and does not seek to do it by this legislation, nor is there any pretense of the limitation of price being placed as a condition of the continued user of the land by the owner of the warehouse. There is no grant of any right by the state, nor of any privilege or franchise, upon- which to base a claim of the power to limit the price for the user of the warehouse.

Both these able writers, whom I have quoted, are plainly of the opinion that the Mumn Case cannot be upheld as within any branch of the police power, as that power is limited under our constitutional government; and I think that, notwithstanding the great respect which is entertained for the Federal Supreme Court, the doctrines of the Munm Case have never received the unqualified approval of the profession. I think, in order to follow it in these cases, we should have to overturn cases and principles decided in this state, after mature deliberation and upon the most impregnable grounds.

The Munn Case was published in 16 American Law Register (N. S.), 526, in 1877. A note is added, at the end of the report, which is entirely adverse to the doctrines of the case, and it is stated that no other court had ever held that a warehouse, situated as was that of the plaintiff in error in that case, was private property which was affected with a public use. A private individual’s property was supposed to be affected by a public use, as stated in the note above referred to, when the public had a somewhat greater or less proprietary right therein, as in a public stream over which a person established a ferry, or in the right to a fishery, etc.; and the right to regulate the business of a common carrier it was thought might be placed on the ground of the use the carrier made of

Commenting on the Munn Case, it is said, in 2 Hare’s American Constitutional Law, 771: “ Such legislation may be eminently just as regards companies which have been chartered by the state or clothed with the power of eminent ■domain, because grants of this description not infrequently preclude the competition which is the security against overcharge in trade, but seems questionable when the way is left ■open to individual enterprise,” etc.

There is some evidence, also, that the decision in the Munn ease has not been accepted without criticism by lawyers, even in the land from which we derive our common law, upon the principles of which the learned chief justice claimed to rest it. Mr. Bryce, one of the most accomplished of English lawyers and statesmen, and the author of the late great work on “ The American Commonwealth,” thinks that the decision was, perhaps, more the effect of public opinion in its action upon the •court than of a strict adherence to legal principles; and while, as he says, not presuming to question its correctness, yet adds that it evidently represents a different view of the sacredness of private rights, and of the powers of the legislature, from that entertained by Chief Justice Marshall and his associates. (See 1 Bryce’s American Commonwealth [2 vol. ed.L p. 267: [3 vol. ed.] p. 365.)

Hpon the question of what is meant by the expressions public use and virtual monopoly, when found in the cases upon the subject under consideration, that of Allnutt v. Inglis, as Treasurer of The London JDoek Company (12 East, 527), is a most instructive one. The defendants were the owners of certain London docks, and they had received from parliament the right to store foreign wines in their warehouses connected with such docks, in bond, until their sale, and the payment of duties thereon. This license was, at that time, exclusive, as none but the owners of these docks had the right to receive the wines on storage. This gave the importers of such wines the legal right to resort to the docks

The facts of the case must be taken into account whenever-expressions are used of a somewhat general nature; and it is evident that when the English judges and courts spoke of an owner of property devoting it to a public use, or one in which the public had an interest, they meant that by reason of such devotion the public thereafter had a right to resort to the-place where the property was, and a legal right to demand its use on payment of a reasonable compensation. And the cases they were discussing, and in which they made use of the term “virtual monopoly,” and where they held the owners-had devoted their property to a public use, were cases where such owners were receiving from the government some-

The case of Bolt v. Stennett (8 Durnf. & East, 606) is an illustration of the same principle. The crane was set up by its owners on a public quay (either by the express or implied license of the government) to which the public had the right to resort for the purpose of loading and unloading vessels, and, being so set up and under such circumstances that the public had the right to make u$e of it, the compensation therefor was properly limited to a reasonable sum.

In this state neither the amount of work done by the .owner for the public in the use of his property, nor the numbers ■of the public who use it, nor the convenience of situation of the property, nor all combined, make the use a public one within the meaning of the term as used in this discussion, Where the owner of property holds himself out to the public as the common servitor thereof, as in the case of a common carrier or innkeeper, or wharfinger (which, as I have said, •are ancient exceptions to the general rule), or where he has received some privilege or franchise from the government, then he has granted to the public an interest in his property as to its use, or he accepts the privilege or franchise upon such conditions as the government may annex to its exercise. And when he opens his premises to and invites the public generally to repair to them for the purpose of a resort for some kind of public entertainment or amusement, then he, for the time being at least, brings such property within the exercise of the police power as applied to regulations for the public health or morals, as in the late case of People v. King in this court ( 110 N. Y. 418 ), already cited. Even the law,

The decision in the Mwnn Case entirely changed the common-law character of the warehouses or elevators, and transformed the business from a private to a public one, and this transformation was held to have taken place simply because of the extent of the user of the property and the convenience of situation. The change being effected, the right to demand the services of the plaintiffs in error was assumed .without argument; and such right existing, the right to limit the-charge was evolved therefrom. The fact that the owners of the property had received no license or privilege from the-state, had been endowed with no legal monopoly, virtual or otherwise, were neither common carriers nor public wharfingers, and were simply using th^ir private property in a business which, in its real nature, was as strictly private as that of the large houses of A. T. Stewart, Claflin & Co., and hundreds of other large firms in New York and elsewhere, had no effect with the court in determining this question of public use. The business was placed on the same foundation as a common carrier, and the right of the public to compel business relations was assumed. I am confident that the courts. of this state have never gone to any such length in determining when property is devoted or dedicated to a public use.

What is alluded to in the books as a monopoly, or as a. “ virtual ” monopoly, is, in either ease, a right created by license from the crown or by virtue of an act of parliament (See 4 Bl. Com. 159; 4 Stephens’ Com. 291.) The important fact is that it emanates from the sovereign power either by license or by legislation, and in both cases, either as an exclusive or a virtual monopoly, it is a privilege or immunity granted to an individual or corporation, and, of course, upon such conditions as to compensation, etc., as the licensing power may choose to impose. Thus in the case in 12 East (swpra), it was stated that the dock owners would have had a virtual monopoly of the storage business if the choice of the public-

It was nowhere stated or implied that there could be an exclusive or a virtual monopoly grounded on the fact of convenience of situation, or the costliness of the erections, or a mere combination of owners to raise prices. Such combinar tions might be illegal, and they might subject the persons who entered into .them to prosecution as violators of the law, but that would confer no right to regulate or limit the amount of compensation which a private individual might charge for the use of his property, where he had not devoted it to a public use, as I understand the meaning of that term, and where he had not received any privilege or immunity from the state, upon the exercise of which the right of limitation might be imposed. The virtual monopoly, in the case in East, rested wholly upon the grant of the privilege of bonding given by the crown.

Finally, and much later than the Munn Case, the Supreme Court, in defining just what it did decide in that case, said (per Mr. Justice Milleb) that the Munn Case presented the question whether one engaged in a public business, in which all the jubile had a right to regtwre his service, could be regulated by acts of the legislature in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such services, and the court answered such question in the affirmative. (See Wabash S. L. P. R. Co. v. Illinois, 118 U. S. 557 , 569.) The court seems, therefore, to have assumed in the later case that the Chicago elevator owners were bound to place their elevators at the service of the public upon demand, and could not, so long as they remained in the business, refuse to do the business required of them, and that the Mv/rm Case simply

The Slaughter-house Cases ( 16 Wall. 36 ) decided that the act of the Louisiana legislature, although granting an exclusive right or privilege as to the slaughtering of cattle, and designating the place for it, was yet valid • as a police regulation as to such business, and came under the description of a health regulation, and did not violate any provision of the Federal Constitution. But, if the mere extent of the use of one’s property by the public, in the particular business in which he is engaged, is to stamp that use as a public one, and if he is, therefore, to be held to have devoted his property to a public use, the power of the legislature may be imposed upon a vast number of employments which have heretofore been regarded as wholly private, although at the same time very extensive.

A man may set up scales for weighing merchandise by the wholesale, upon his own lands, and announce his readiness to weigh the, merchandise of all comers upon such terms as they may agree as to compensation. As soon as his business reaches proportions large enough to enable the legislature, in its discretion, to declare that he has devoted his property to a public use, that moment it is clothed with the power to limit him in his compensation for the use of his own property. It is in vain for him to say that he has asked and received nothing from the state by way of any special privilege or right, and that he has a right to charge what he will for the use of Ms own property, and the public has no right to demand Ms services; the answer would be you have devoted your property to a public use because great numbers of the public desire to and do use your property for the purpose that you have offered it, and it is entirely immaterial that the public has no legal right to demand such use. As long as you are in the business you must submit to be regulated by the power of the state.

If a man should erect on his own land a large steam mill to grind corn, and, by reason of his superior facilities, large

Nothing like this question was discussed or decided in Township, etc., v. Beasley ( 94 U. S. 310 ), as the only controversy there existing was whether the particular purpose for which the bonds were in that case issued was covered by the Kansas, enabling statute. The validity of that statute was not discussed or decided. But there are some states where a riparian owner has been given the right to build dams for the purpose of running mills by water power, and to overflow thereby the lands of others, upon payment of the damage ■done, and it has been held that the overflowing of the land was for a public purpose, i. e., for a mill, and that it might be done under the authority of the legislature upon due compensation being made. Many of such statutes are set forth in the note to the very learned opinion of Mr. Justice G-bay, in Head v. Amoskeag, Manufacturing Company ( 113 U. S. 9 ), in which case it was held by the federal court that such a statute violated no clause of the Federal Constitution; but the act was upheld in that court, not as a proper exercise of the right of eminent domain, as taking property for a public use, and it was considered as one regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed.

This court has never gone to any such length, however, in determining what was a public use, within the taxing power or within that of eminent domain. In Hay v. Cohoes Company ( 3 Barb. 42 , 47) it was stated that no exercise of any

In Weismer v. Village of Douglass ( 64 N. Y. 91 ), which was substantially a mill case, where the defendant was authorized to issue its bonds to raise money to pay a subscription to-a corporation which was expected to run a saw-mill on the-Delaware river, this court held that the bonds were not issued for a public purpose, and the property of individuals could not be taxed to raise money to pay the principal or interest, on such bonds. The purpose was declared not to be a public-purpose, because (among other reasons) the public had no-right to go to the mill of the corporation, when completed, and demand the right to have logs sawed into lumber there. As the corporation could refuse, at any and at all times, to saw the lumber for any particular person, or for all persons, the-business of building or running the mill was not a public purpose or use; and, of course, property thus used Avas not. devoted to a public use, and taxation for it was illegal. And In re Application of Eureka Basin, etc., Company of Long-Island ( 96 N. Y. 42 ), the company was organized to (among-other things) acquire certain swamp lands and erect thereon basins, docks, wharves and piers, and warehouses for storing-goods from vessels, etc., and it desired to obtain certain lands by the exercise of the power of eminent domain, upon the assertion that the use contemplated was a public one. This-court held that as the public did not have the right to use the warehouses, or to direct, in any way, their management, and the property remained under private ownership, it was not a, public use to which it was to be put, and hence no right existed to exercise the power asked for. The court said: “The fact that the use to which the property is intended to-be put, or the structm’e intended to be built thereon, will tend, incidentally, to benefit the public by affording additional accommodations for business, commerce or manufactures, is-

These two cases, in our own courts, illustrate the matter of" a public use when that term has been employed with reference to the two great powers of taxation and eminent domain,, and they show that, in circumstances such as therein stated, the fact that the public had no legal right to resort to the-premises and to demand the use of the owner’s property, on payment of reasonable compensation, was fatal to the claim that such use was of a public nature, or that the property was-in such case devoted to a public use. There is no distinction of principle between the cases; and whenever it has been claimed heretofore that property has been devoted to a public use the term has expressed the fact which existed that the public had a right of resort to the premises and to-use the property, or to demand transportation, etc., upon reasonable compensation being paid or tendered. And the-case of a steam mill, which I have instanced, would not in this state be regarded as in the least degree a property which was devoted to any public use whatever, although its presence-might greatly tend to benefit and accommodate the public.

The same principle has been decided in Vermont in Tyler v. Beacher ( 44 Vt. 648 ), and the opinion of Mi1. Justice-Wheeler is referred to as a very able examination of the subject of what is a public use. If the power were as broad as is sometimes claimed, so that every sovereignty might regulate the conduct of its citizens towards each other in this-way, when necessary for what the legislature should determínete) be the public good, and could regulate the manner in which each person should use his property, to the extent of making this limitation, then the whole power of legislation rests with the legislative department, unrestrained by any constitutional prohibition; and it is but necessary for the legislature to decide that its proposed enactment is for the public good and general welfare, and such decision stands as a conclusive-

The clause in our Constitution that no person shall be ■deprived of fife, liberty or property without due process of law (Const, art. 1, § 6), is to have a large and liberal interpretation, as this court has said in so many words, and as is evidenced by the above cited and other cases. The citizen is thereby protected against any unlawful invasion of such rights or of any essential incident to the enjoyment thereof. Many instances of the benefits of this provision are cited in those cases, and in the dissenting opinion of Mr. J ustice Field in the Munn Case, which, it seems to me, is a most masterly examination and clear statement of the principles which I believe this state has always stood by, and protected through its courts.

These cases hold that the liberty mentioned in the bill of rights is not the mere right to be free from personal restraint. It includes a right to labor and to receive the fruits of one’s labor (which includes the price for the use of one’s property), in all ways which are not harmful to the welfare, the health, the happiness of others. The whole reason for the existence of the police power rests in the theory that one shall so use his own property as not to interfere with the proper use by others of their property, and so as not to interfere with the public health, morals or general welfare. The last words do not give power to the legislature, arbitrarily, to determine the question what is for the general welfare; but such power is subject to the constitutional restrictions already adverted to, beyond or in violation of which the legislature cannot go.

The difference of title of shore owners on the Hew York and Brooklyn sides of the East river is discussed in Wetmore v. Atlantic White Lead Company ( 37 Barb. 70 ), and referred to and recognized in the case of same plaintiff against Brooklyn Gas Company ( 42 N. Y. 393 ). And it was distinctly stated in last cited case that the state did not, by its former-acts, grant any right or privilege or franchise to the owners of the land under water, upon which could be based the right to compel the owner of the land to consent to its use by the public.

The License Cases (5 How. [U. S.] 504, at 583) decided only that regulations for the sale of intoxicating liquors were valid and did not infringe any provision of the Federal Constitution. Taney, Ch. J., in speaking of the police power of the state, simply said that it was of the same class as any other power inherent in every sovereignty. There was no pretense of a claim that it was a sovereign power uncontrolled and unlimited by the clauses of the Constitution providing for the liberty of the citizen. When the state legislates it does so by virtue

It has been frequently said that the police power rests for its foundation upon the general duty of each citizen to so "use his property as not to interfere with the fair and proper use by his neighbor of his property, and to protect and guard the ■public health and morals. The power to regulate or limit .the price for the use of property situated like that in this case •conies within no fair definition of such power, nor does it belong to the category of things that should be regulated in order that another may properly enjoy his own property, -or that the public health or morals may be protected..

An examination of the cases now before us, in view of these ■observations, will show, as I think, that these defendants have never devoted their property to a public use, so that the public had a right to require their service, and that they have received no immunity or privilege from the state upon which "this claimed right of limitation can be imposed as a condition io its exercise.

These defendants are the owners or lessees of certain elevators or warehouses, used in the harbor of Hew York for "the purpose of transferring grain from one vessel to another, from canal boat to steamship, or from boat to rail car, or for the storing of grain. They are not a corporation, nor have they received any special privilege from the state in regard to their business, nor are they engaged in a business which is not absolutely free to anyone who wishes to use his property "in the same way. They have no special right to use the waters within the jurisdiction of the state in a manner not ■equally open to every citizen, not only of the state, but of- the "United States. The state furnishes them no special facilities for the carrying on of their business, and they are under "no obligations to it for any protection to their business or property, other than such as is given by and is due from the state "to all the inhabitants thereof, viz., the duty of protection to their persons and property while they are lawfully engaged

The defendants are situated entirely differently from the elevator owners in Chicago, whose rights were adjudicated upon in the Munn Case. The canal boats loaded with grain, after their passage down the Hudson river, seek the owners of the storehouse in which to store the same until wanted, or the floating elevator is sought for and found, and employed to unload the cargo of the boat into the hold of the steamship. There are large numbers of warehouses and elevators which are in no way connected with each other. In neither case is there anything like what can be called a monopoly, virtual or otherwise; the utmost stretch of the imagination cannot so regard it. The warehouses are private property, and no one can enter upon them without the consent of their owners. ( Wetmore v. Atlantic White Lead Co., 37 Barb. 70 ; Wetmore v. Brooklyn Gas-Light Co., 42 N. Y. 384 .)

Still more plainly is this the case with a floating elevator. It-is not a common carrier or wharfinger or warehouseman. It has no monopoly, virtual or otherwise, as to facilities of place, convenience of situation, or license or privilege from the state. In the nature of the business of both the warehouseman and the elevator owner it is wholly private. How, in what is the case made less strong when, instead of the scales or the mill, heretofore instanced, an elevator or warehouse is substituted? It is built by individuals or private partnerships, and occupied by them or leased to other private individuals or partnerships. It is built on lands owned by individuals, or it is in the substantial form of a boat, and

But when the right of regulation as to compensation is spoken of because the person has a virtual monopoly, the term has heretofore been used as indicative of some special privilege or franchise granted to the individual by the sovereign which results in such virtual monopoly, and the right of such regulation exists by reason of such grant. Ho monopoly of that kind exists in this case. If it be said that the effect is the same, the answer is that it is not the same. In the one case the monopoly exists by reason of the action of the government, and no other citizen can come in and devote his capital and energy to such use. In the other the monopoly exists only as long as other citizens choose to keep out of the business, and just as soon as it is seen that the least degree over the ordinary profit can be realized by an investment in elevator property just that moment capital will flow into that channel, and probably away from some industry where the average rate of profit has ceased to be made. Thus in one case the result cannot be avoided or in any way altered excepting by the action of the sovereign, while in the other case it may be altered by the action of the ordinary laws of trade. The effect, while it lasts, may possibly be the same in both cases, but in the one it is arbitrary and dependent upon, the government, and in the other subject to alteration according to general commercial rules. But in this case there is net-pretense of a monopoly grounded upon lack of ability in the-public to compete. On the contrary, the complaint is that the competition has been so fierce and the numbers of those-engaged in the business so great that they have combined to

It is said, however, that the defendants have received some privileges or benefits from the state in their business of elevating or storing grain, because the state has built the Erie canal and spent large sums of money for that purpose, and the business of elevating grain into and out of a canal boat, or of storing it, is made much greater than would be possible but for the constant maintenance of the canal by the state; and if the state should cease to maintain the canal the business of transporting grain over it would be wholly destroyed, and, therefore, it must be conceded that the business of elevating grain receives support from the public, and it is only through such support that the business can exist. It is difficult, as it seems to me, to regard this argument seriously. The state, it is thus said, h'as built a canal, and there are men (not the defendants) who propose to avail themselves of its existence, and to transport merchandise in their boats over its waters. Before undertaking such transportation, however, they must load their boats or unload them after such transportation is finished, and in the process of loading or unloading their boats in the public waters of the state they hire the defendants to do the elevating of the cargo. If the canal had not been built there would have been no boatmen with canal boats asking for cargoes, and, consequently, the defendants would not have had the opportunity of loading their vessels, therefore, the state has conferred a privilege upon the

The legislation in question is nothing else than an effort, not only to regulate the private business of private individuals, but to limit the amount for which they shall exact compensation for the use of their own property, in which the public has no interest whatever, in the legal meaning of that term. If it is legal in this case, it- is legal in any. The legislature can step in and Emit the prices of every article of commerce, the product of the field, the mine or the manufactory. There is seemingly no length to which it may not go, and no home to which this power may not be appEed in matters of the most individual and private nature, and aE under the guise of legislation for the public good and the general welfare.

It is true that the question of the validity of this law is one of power and not of propriety; and if the legislature, in any case, may have, under any circumstances, the power to Emit the compensation which a private individual may receive for the use of his own property, not devoted to a public use and in regard to which he receives and exercises no special privilege or immunity from the state, then we are bound to suppose such circumstances to exist in the case before the court. We are of the opinion that the legislature has no such power.

There is no foundation for the argument that the elevator owners have a monopoly because they have their charges fixed by the Produce Exchange, which only recognizes as regular the warehouse receipts given by elevator owners or warehouse

The disposition of legislatures to interfere in the ordinary-concerns of the individual, as evidenced by the laws enacted, by parliaments and legislatures from the earliest times, and the futility of such interference to accomplish, the purposes intended, have been the subject of remark by , some of the ablest of English-speaking observers. Buckle, in his History of Civilization in England, in speaking of the course of English legislation, says: “ Every great reform which has been effected has consisted, not in doing something new, but in undoing something old. The most valuable additions made to legislation have been enactments destructive of preceding legislation, and the best laws which have been passed have-been those by which some former laws have been repealed.” And again: “We find laws to regulate wages; laws to regulate prices; laws to regulate profits; laws to regulate the interest of money; custom-house arrangements of the most vexatious kind, aided by a complicated scheme, which was well called the sliding scale — a scheme of such perverse ingenuity that the duties constantly varied on the same article, and no man could calculate beforehand what he would have to pay. A system was organized, and strictly enforced, of interference with markets, interference with manufacturers, interference with machinery, interference even with shops.

' In other words, the industrious classes were robbed in order that industry might thrive.” (Buckle’s History of Civilization in England, vol. 1, pp. 199, 200, etc.)

The legislation under review is of the same general nature. To uphold legislation of this character is to provide the most frequent opportunity for arraying class against class; and, in addition to the ordinary competition that exists throughout all industries, a new competition will be introduced, that of competition for the possession of the government, so that

In my opinion the court should not strain after holding such species of legislation constitutional. It is so plain an effort to interfere with what seems to me the most sacred rights of property and the individual liberty of contract that :no special intendment in its favor should be indulged in. It will not, as seems to me plain, even achieve the purposes of its authors. I believe it vain to suppose that it can be other than of the most ephemeral nature at its best, or that it will .have any real virtue in altering the general laws of trade, while, on the other hand, it may ruin or very greatly impair the value of the property of wholly innocent persons. If the •compensation limited by the act is not sufficient to permit the average rate of profit upon the capital invested, it will result either in its evasion or else the work will not be done, and the capital employed will seek other channel,%where such average .rate can be realized, or the property will become of little or no value. If the compensation be sufficient, the same result aimed at would soon follow from the general laws of trade, from the law of supply and demand, and the general ■cost of labor and materials.

Every one having the same right to build an elevator or warehouse that these defendants have, and upon its completion to employ it in the same business, if the rate of profit is

The legislation under consideration is not only vicious in its nature, communistic in its tendency, and, in my belief, wholly inefficient to permanently obtain the result aimed at, but, for the reasons already given, it is an illegal effort to interfere with the lawful privilege of the individual to seek and obtain such compensation as he can for the use of his own property, where he neither asks nor receives from the sovereign power any special right or immunity not given to and possessed by every other citizen, and where he has not devoted his property to any public use, within the meaning of the law.

The orders of the General and Special Terms of the Supreme Court should, therefore, be reversed, and the relators discharged.

All concur with Andrews, J., except Gkat and Peck-ham, JJ., dissenting.

Judgment affirmed.