Illinois Public Warehouses: Rights & Obligations of Owners & Railroads, Exercises of Business

Download Illinois Public Warehouses: Rights & Obligations of Owners & Railroads and more Exercises Business in PDF only on Docsity! Oct. 1876.3 MU'NN V. ILLINOIS. The first day of Vie term, in order to preserve our jurisdiction; andt we think that such an omission does not avoid the appeal, it rather furnishes a case where, under the rule in Martin Hunter's Lessee, I Wheat. 361, and followed in -Davidson v. anier, 4 Wall. 454, we "may grant summary relief" "by im- posing such terms upon the appellants as under the circum- stances may be legal and proper." As this appeal was returnable to the present term, and some attempt was made. to serve the citation, which the appellants may have supposed was actually completed, we order that, unless the appellants cause a new citation, returnable on the fixst Mon- day in February next, to be issued and served upon the appellee before that date, the appeal be dismissed. MUNN V. ITIoIS. L. Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens toward each other, and, when necessary for the public good, the manner in which each shall usehis own property. 2. It has, in the exercise of these powers, been customary in England from time immemorial, and in this country from its first colonization, to regulate fer- ries, common carriers, hackmen, bakers, millers, wbarfingers, innkeepers, &c., and, in so doing, to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. 3 Down to the time of the adoption of the fourteenth amendment of the Consti- tution of the United States, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circum- stances they may, but not under all. , The amendment does not change the law in this particular: it simply prevents the States from doing that which will operate as such deprivation. 4 When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use. He maywithdraw his grant by discontinuing the use. 5 Rights of property, and to a reasonable compensation for its use, created by the common law, pannot be taken away without due process; but the law itself, as A rule of conduct, may, unless constitutional limitations forbid, be changed at the will of the legislature. The. great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. 6 The limitation by legislative- enactment of the rate of charge for services voL. Iv. 8 MNN V. ILLINOlsp. rendered in a public employment, or for the use of property in which -h public has an interest, establishes no new principle in the law, but o-. gives a new effect to an old one. 7. Where warehouses are situated and their business is carried on exclusive within a State, she may, as a matter of domestic concern, prescribe reg lations for them, notwithstanding they are used as instruments by tho. engaged in inter-state, as well as in State, commerce; and, until Congress acts in reference to their inter-state relations, such regulations can be eu- forced, even though they may indirectly operate upon commerce beyond her immediate jurisdiction. 8. The court does not hold that a case may not arise in which it may be found that a State has, under the form of regulating her'own affairs, encroached upon the exclusive domain of Congress in respect to inter-state commerce. 9. The ninth section of the first article of the Constitution of the United States operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs. 10. The act of the general assembly of Illinois, entitled "An Act to regulate public warehouses and the warehousing and inspection of ,rain, and to give effect to art. 13 of the Constitution of this State," approved April 25, 1871. is not repugnant to the Constitution of the United States. ERROR to the Supreme Court of the State of Illinois. The Constitution of Illinois, adopted in 1870, contains the following in reference to the inspection of grain, and the stor- age thereof in public warehouses: - "ARTICLE XIII.- WARHousEs. "SECTION 1. All elevators or storehouses where grain or other property is stored for a compensation, whether the property sTored be kept separate or not, are declared to be public ware houses. "SECT. 2. The owner, lessee, or manager ot each and every pub. lie warehouse situated in any town or city of not less than one hun- dred thousand inhabitants, shall make weekly statements under oath before some officer designated by law, and keep the same postect in some conspicuous place in the office of such warehouse; and shah also file a copy for public examination in such place as shall be designated by law, which statement shall correctly set forth the a.mount and grade of each and every kind of grain in such ware- house, together with such other property as may be stored therein, and what warehouse receipts have been issued, and are, at the time of making such statement, outstanding therefor; and shall, oA the copy posted in the warehouse, note daily such changes as may be made in the quantity and grade of grain in such warehouse; and the different grades of grain shipped in separate lots shall not be [isup. t Oct. 76.]MNN V. ILINOIS. provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse), shall, on conviction, be fined in a sum not less than $100 for each and every day such business is so carried on; and the court may refuse to renew any license,. or grant a new one to any of the persons whose license has been revoked, within one year from the time the same was'revoked." . "SECT. 15. Every warehouseman of public warehouses of class A shall be required, during the first week of January of each year, to publish in one or more of the newspapers (daily, if there be such) published in the city in which such warehouse is situated, a table oi schedule of rates for the storage of grain in the warehouse during the ensuing year, which rates shall not be increased (except as provided for in sect. 16 of this act) during the year; and such published rates, or any published reduction of them, shall apply to all grain received into such warehouse from any person 6r source; and no discrimination shall be made, directly or indirectly, for or against any charges made by such warehouseman for the storage of grain. "The maximum charge of storage and handling of grain, includ- ing the cost of receiving and delivering, shall be for the first thirty days or part thereof two cents per bushel, and for each fifteen days or part thereof, after the first thirty days, one-half of one cent per bushel; provided, however, that grain damp or liable to early dam- age, as indicated by its inspection wLen received, may be subject to two cents per bushel storage for the first ten days, and for each additional five days or part thereof, not exceeding one-half of one per cent per bushel." On the twenty-ninth day of June, 1872, an information was filed in the Criminal Court of Cook County, Ill., against Munn & Scott, alleging that they were, on the twenty-eighth day of June, 1872, in the city of Chicago, m said county, the managers and lessees of a public warehouse, known as the " North-western Elevator," in which they then and there stored grain in bulk, and mixed the grain of different owners together in said warehouse; that the waiehouse was located in the city of Chicago, which contained more than one hundred thou- sand inhabitants; that they unlawfully transacted the business of public warehousemen, as aforesaid, without procuring a license from the Circuit Court of said county, permitting them Oct. 1876.] MUNN V. ILLINOIS. to transact business as public warehousemen, under the laws of the State. To this information a plea of not guilty was interposed. From an agreed statement of facts, made a part of the record, it appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the "North-western Elevator," and erected thereon the grain warehouse or elevator in that year, with their own capital and means; that they ever since car- ried on, in said elevator, the business of storing and handling grain for hire, for which they charged and received, as a com- pensation, the rates of storage which had been, from year to year, agreed upon and established by the different elevators and warehouses in the city of Chicago, and published in one or more newspapers printed in said city, in the month of Jan- uary in each year, as the established rates for the year.-then next ensuing such publication. On the twenty-eighth day of June, 1872, Munn & Scott were the managers and pro- prietors of the grain warehouse known as "The North-western Elevator," in Chicago, Ill., wherein grain of different owners was stored in bulk and mixed together; and they then and there carried on the business of receiving, storing, and deliver- ing grain for hire, without having taken a license from the Cir- cuit Court of Cook County, permitting them, as managers, to transact business as public warehousemen, and without having filed with the clerk of the Circuit Court a bond to the peo- ple of the State of Illinois, as required by sects. 3 and 4 of the act of April 25, 1871. The city of Chicago then, and for more than two years before, had more than one hundred thousand inhabitants. Munn & Scott had stored and mixed grain of different owners together, only by and with the express consent and permission of such owners, or of the consignee of such grain, they having agreed that the compensation should be the published rates of storage. Munn & Scott. had complied in all respects with said act, except in two particulars: first, they had not taken out a li- cense, nor given a bond, as required by sects. 8 and 4; and, second, they had charged for storage and handling grain the rates established and published in January, 1872, which were higher than those fixed by sect. 15. [Sup. Ot. MUNN V. ILINOIS& The defendants were found guilty, and fined $100. The judgment of the Criminal Court of Cook County having been affirmed by the Supreme Court of the State, Munn' & Scott sued out this writ, and assign for error:- 1. Sects. 8, 4, 5, and 15 of the statute are unconstitutional and void. 2. Said sections are repugnant to the third clause of sect. 8 of art. 1, and the sixth clause of sect. 9, art. 1, of the Constitu- tion of the United States, and to the -Fifth and Fourteenth Amendments. 2r. W. C. Goudy, :with whom was fr. John . Jewett, for the plaintiffs in error. The plaintiffs in error could not safely take a license and give a bond, as required by sects. 8 and 4 of the act, because they would thereby waive the right to question the validity of the act. Cooley on Const. Lim. 181; Baker v. Braman, 6 Hill, 511; Ferguson v. Landrum, 1 Bush (Ky.), 548; Home Ins. Co. v. Security Ins. Co., 23 Wis. 171. 1. The third, fourth, fifth, and fifteenth sections of the act, under which the plaintiffs in erroi were convicted and fined, are repugnant to the third clause, § 8, art. 1, of the Constitu- tion of the United States, Which confers upon Congress power to regulate commerce with foreign nations and among the sev- eral States. Ward v. faryland, 12 Wall. 418; Case of the State Freight Tax, 15 id. 232; Gibbons v. Ogden, '9 Wheat. 1 ; Brown v. Maryland, 12 id. 419 ; Osborne v. Mobile, 16 Wall. 479; TWoodruff v. Parham, 8 id. 123; Wilson v. BlackbirdCreek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 8 Wall. 718; License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; City of Nfew York v. Miln, 11 Pet. 102. 2. These sections are also repugnant to the sixth clause of sect. 9, art. 1, of the Constitution, which ordains that no prefer- ence shall be given by any regulation of commerce or revenue to the ports of one State over those of another. 8. They are also repugnant to that part of the first section of art. 14 of the amendments to the Constitution of the United States which ordains that no State shall deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of Opt. 187/6.] NUNN V. ILLINOM. [u.C Bank, 6 How. 344; Sanford v. Railroad Company, 24 Penn. St. 381; Coggs v. Bernard, 2 Ld. Raym. 909; C. J N. W, Railroad Co. v. The People, 56 Ill. 377. Like common carriers, they are required by law to receive grain from all persons, and store the same upon equal terms and conditions. Rev. Stat. of Ill. (of 1874), p. 821, § 101; Ross v. Johnson, 5 Burr. 2827; Low v. Martin, 18 Ill. 288; Steinman v. Wilkins, 7 Watts & S. (Pa.) 466, 468. Although the ownership of the property is private, the use may be public in a strict, legal sense; hence, -in adjudicated cases, the terms "public wharves," "public roads," "public houses," and "public warehouses," are of frequent occurrence, although the property may be the subject of private ownership. Dutton v. Strong, 1 Black, 32; Ives v. Hartley, 51 1ll. 523; Olcott v. The Supervisors, 16 Wall. 678. 6. Whenever any person pursues a public calling, and sustains such relations to the public that the people must of necessity deal with him, and are under a moral duress to submit to his terms if he is unrestrained by law, then, in order to prevent extortion and an abuse of his position, the price he may charge for his services may be regulated by law. Commonwealth v. .Duane, 98 Mass. 1; State v. Perry, 5 Jones (N. C.) L. 252; State v. Nixon, id. 258; Bac. Abr. tit. "Carriers," D.; Mur- ray's Lessee et al. v. fHoboken Land and Imp. C o., 18 How. 272; Kirkham v. Shawerass, 6 T. R. 17; 2 Peake N. P. 0. 185; 10 M. & W. 415; Ogden v. Saunders, 12 Wheat. 259; Mills v. County Commissioners, 4 fll. 58; Trustees of Schools v. Tatman, 13 id. 87. If grain warehousemen in Chicago "pursue a public em- ployment," or "exercise a sort of public office," and sustain such relations to the public that all the grain consigned to "the greatest grain market in the world" must necessa- rily pass through their hands, the State of Illinois, in virtue of its unquestionable power to regulate its internal com- merce, may enact laws prescribing maximum rates of storage. The storage of grain offered for sale in the markets of a State most clearly pertains to its internal or domestic com- merce. Sup. O MUNN V. ILIMOIS. MR. CHr JUSTICE WAim delivered the opinion of the court. The question to be determined in this case is whether the general assembly of Illinois can, under the limitations upon the legislative power of the States imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of gain in warehouses at Chicago and other places in the State having not less than one hundred thousand inhabi- tants, "in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved." It is claimed that such a law is repugnant 1. To that part of sect. 8, art. 1, of the Constitution of tho United States which confers upon Congress the power "to reg- ulate commerce with foreign nations and among the several States;" 2. To that part of sect. 9 of the same article which provides that "no preference shall be given by any regulation of com. merce or revenue to the ports of one State over those of another;" and 8. To that part of amendment 14 which ordains that no State shall "deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." We will consider the last of these objections first. Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If. there is doubt, the expressed wiill of the legisla- ture should be sustained. The Constitution contains no definition of the word "deprive," as used in the Fourteenth Amendment. To determine its sig- nification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like con- nection. While this provision of the amendment is new in the -Consti- tution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in Oct. 1876.] MUNN V. ILLINOIS. nearly or quite all the constitutions that have been from time to time adopted by the several States of'the Union. By the Fifth Amendment, it was introduced into the Constitution of the Uniited States as a limitation upon the powers of the national government, and by the Fourteenth, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the States. When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained for the purposes of govern- ment all the powers of the British Parliament, and through their State constitutions, or other forms of social compact, under- took to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they commited to their respec- tive States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the pro- hibitions of the constitutions. When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A body politic," as aptly defined in the preamble of the Constitution of Massachusetts, "is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be. governed by certain laws for the com- mon good." This does not confer power upon the whole peo- ple to control rights which are purely and exclusively private, Thorpe v. B. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and [Sup. Ct. MUN V. ILINoIS. And, again, as to wharves and wharfingers, Lord Hale, in his treatise Doe Portibus Marie, already cited, says - "A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his cus- tomers can agree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own .... If the king or subject have a public wharf, unto which all persons that come to that port must come and un- lade or lade their goods as for the purpose, because they are the wharfs only licensed by the king, ... or because there is* no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c., neither can they be enhanced to an immoderate rate; but the duties must be reason- able and moderate, though settled by the king's license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris pivati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest." This statement of the law by Lord Hale'was cited with ap- probation and acted upon by Lord Kenyon at the beginning of the present century, in Bolt v. Stennett, 8 T. R. 606. And the same has been held as to warehouses and warehouse- men. In Aldnutt v. Inglis, 12 Eait, 527, decided in 1810, it appeared that the London Dock Company had built ware- houses in which wines were taken in store at such rates of charge as the company and the owners might agree upon. Afterwards the company obtained authority, under the general warehousing act, to receive wines from importers before the duties upon the importation were paid; and the question was, whether they could charge arbitrary rates for such storage, or must be content with a reasonable compensation. Upon this point Lord Ellenborough said (p. 537): - "There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property, or the use of it; but if for a particular pur- pose the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if Oct. 1876.] MUNN V. ILLINOIS. he will take the benefit of that monopoly, he must, as an equiva- lent, perform the duty attached to it on reasonable terms. The question then is, whether, circumstanced as this company is, by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the ware- housing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensa- tion for such warehousing. And, according to him, whenever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reason- able compensation only for the use of the wharf." And further on (p. 539): - "It is enough that there exists in the place and for the commod- ity in question a virtual monopoly of the warehousing for this pur- pose, on which the principle of law attaches, as laid down by Lord Hale in the passage referred to [that from De Portibus Afaris already quoted], which includes the good sense as well as the law of the subject." And in the same case Le Blanc, J., said (p. 541) - "Then, admitting these warehouses to be private property, and that the company might discontinue this application of them, or that they might have made what terms they pleased in the first instance, yet having, as they now have, this monopoly, the question is, whether the warehouses be not private property clothed with a public right, and, if so, the principle of law attaches upon them. The privilege, then, of bonding these wines being at present con- fined by the act of Parliament to the company's warehouses, is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to pay an arbitrary but a reasonable rent? But upon this record the company resist having their demand for warehouse rent confined within any limit; and, though it does not follow that the rent in fact fixed by them is unreasonable, they do not choose to insist on its being reasonable for the purpose of raising the ques- tion. For this purpose, therefore, the question may be taken to be whether they may claim an unreasonable rent. But though this be private property, yet the principle laid down by Lord Hale attaches [Sup. 0t. MUNN V. ILLINOIS. upon it, that when private property is affected with a public inter- est it ceases to bejurisprivati only; and, in case of its dedication to such a purpose as this, the owners cannot take arbitrary and excessive duties, but the duties must be reasonable." We have quoted thus largely the words of these eminent expounders of the common law, because, as we think, we find in them the principle which supports the legislation we are now examining. Of Lord Hale it was once said by a learned American judge, - "In England, even on rights of prerogative, they scan his words with as much care as if they had been found in Magna Charta; and the meaning once ascertained, they do not trouble themselves to search any further." 6 Cow. (N. Y.) 586, note. In later times, the same principle came under consideration in the Supreme Court of Alabama. That court was called upon, in 1841, to decide whether the power granted to the city of Mobile to regulate the weight and price of bread was unconsti- tutional, and it was contended that "it would interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate;" but the court said, "there is no motive . . .for this interference on the part of the legislature with the lawful actions of individuals, or the mode in which private property shall be enjoyed, unless such calling affects the public interest, or private property is em- ployed in a manner which directly affects the body of the peo ple. Upon this principle, in this State, tavern-keepers are licensed; .. . and the County Court is required,. at least once a year, to settle the rates of innkeepers. Upon the same prin- ciple is founded the control which the legislature has always exercised in the establishment and regulation of mills, ferries, bridges, turnpike roads, and other kindred subjects." Mobile v. Yuille, 3 Ala. x. s. 140. From the same source comes the power to regulate* the charges of common carriers, which was done in England as long ago as the third year of the reign of William and Mary, and continued until within a comparatively recent period. And in the first statute we find the following suggestive pre- amble, to wit: - Von lv. 9 Oct. 1876.] MUNN V. ILLINOIS. hackney-coachman, pursues a public employment and exercises " a sort of public office," these plaintiffs in error do not. They stand, tc use again the language of their counsel, in the very "gateway of commerce," and take toll from all who pass. Their business most certainly "tends to a common charge, and is become a thing of public interest and use." Every bushel of grain for its passage "pays a toll, which is a common charge,-" and, therefore, according to Lord Hale, every such warehouse- man "ought to be under public regulation, viz., that he . . . take but reasonable toll." Certainly, if any business can be clothed ", with a public interest, and cease to be juris privati only," this has been. It may not be made so by the operation of the Constitution of Illinois or this statute, but it is by the facts. We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitu- tion in 1870, saw fit to make it the duty of the general assem- bly to pass laws "for the protection of producers, shippers, and receivers of grain and produce," art. 13, sect. 7; and by sect. 5 of the same article, to require all railroad companies receiving and transporting grain in bulk or otherwise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such company, and that all railroad companies should permit con- nections to be made with their tracks, so that any public ware- house, &c., might be reached by the cars on their railroads. This indicates very clearly that during the twenty years in which this peculiar business had been assuming its present "immense proportions," something had occurred which led the whole body of the people to suppose that remedies such as are usually employed to prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess 8f the legislative power of the State. But if it could, we must presume it did. Of the-propriety of legisla- [Sup. O . MUNN V. ILLINOIS. tive interference within the scope of legislative power, the legislature is the exclusive judge. Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long-known and well-established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress. There is no attempt to compel these owners to grant the pub- lic an interest in their property, but to declare their obligations, if they use it in this particular manner. It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. What they did, was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be estab- lished by the proper authorities for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns. The same principle applies to them that does to the'proprietor of a hackney-carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances be- cause he had purchased his horses and carriage and established his business before the statute or the ordinance was adopted. It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question. As has already been shown, the practice has been other- wise. In countries where the common law prevails, it has been customary from time immemorial for the legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreason- Oct. 1876.] MUNN V. ILLINOIS. able. Undoubtedly, in mere private contracts, relating to mat- ters in which the public has no interest, what is reasonable must be ascertained judicially. But this is because the legis- lature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use. But a mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they axe developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public em- ployment, or for the use of property in which the public has an interest, is only changing a regulation which existed before. It establishes no new principle in the law, but only gives a new effect to an old one. We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts. After what has already been said, it is unnecessary to refer at length to the effect of the other provision of the Fourteenth Amendment which is relied, upon, viz., that no State shall "deny to any person within its jurisdiction the equal protec- tion of the laws." Certainly, it cannot be claimed that this prevents the State from regulating the fares of hackmen or the [Sup. ot. MUNN V. ILLINOIS. that the identity of different lots or parcels could not be accu- rately preserved. To this class the elevator of the defendants belonged. The act prescribed the maximum of charges which the proprietor, lessee, or manager of the warehouse was allowed to make for storage and handling of grain, including the cost of receiving and delivering it, for the first thirty days or any part thereof, and for each succeeding fifteen days or any part thereof; and it required him to procure from the Circuit Court of the county a license to transact business as a public ware- houseman, and to give a bond to the people of the State in the penal sum of $10,000 for the faithful performance of his duty as such warehouseman of the first class, and for his full and unreserved compliance with all laws of the State in relation thereto. The license was made revocable by the Circuit Court upon a summary proceeding for any violation of such laws. And a penalty was imposed upon every person transacting business as a public warehouseman of the first class, without first procuring a license, or continuing in such business after his license had been revoked, of not less than $100 or more than $500 for each day on which the business was thus carried on. The court was also authorized to refuse for one year to renew the license, or to grant a new one to any person -whose license had been revoked. The maximum of charges prescribed by the act for the receipt and storage of grain was different from that which the defendants had previously charged, and which had been agreed to by the owners of the grain. More extended periods of storage were required of them than they formerly gave for the same charges. What they formerly charged for the first twenty days of storage, the act allowed them to charge only for the first thirty days of storage; and what they formerly charged for each succeeding ten days after the first twenty, the act allowed them to charge only for each succeeding fifteen days aLter the first thirty. The defendants, deeming that they had a right to use their own property in such manner as they desired, not inconsistent with the equal right of others to a like use, and denying the power of the legislature to fix prices for the use of their property, and their services in cpnnection with it, refused to comply with the act by taking out the license and giving the bond required, Oct. 1876.] MUNN V. ILLINOIS. but continued to carry on the biisiness and to charge for receiv- ing and storing grain such prices as they had been accustomed to charge, and as had been agreed upon between them and the owners of the grain. For thus transacting their business with- out procuring a license, as required by the act, they were prose- cuted and fined, and the judgment against them was affirmed by the Supreme Court of the State. The question presented, therefore, is one of the greatest im- portance, - whether it is within the competency of a State to fix the compensation which an individual may receive for the use of his own property in his private business, and for his services in connection with it. The declaration of the Constitution of 1870, that privaue buildings used for private purposes shall be deemed public in- stitutions, does not make them so. The receipt and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language, though used by a constitutional con- vention, which can change a private business into a public one, or alter the character of the building in which the business is transacted. A tailor's or a shoemaker's shop would still retain its private character, even though the assembled wisdom of the State should declare, by organic act or legislative ordinance, that such a place was a publi8 workshop, and that the workmen were public tailors or public shoemakers. One might as well at- tempt to change the nature of colors, by giving them a new designation. The defendants were no more public warehouse- men, as justly observed by counsel, than the merchant who sells his merchandise to the public is a public merchant, or the blacksmith who shoes horses for the public is a public black- smith; and it was a strange notion that by calling them so they would be brought under legislative control. The Supreme Court of the State -divided, it is frue, by three to two of its members - has held that this legislation wAs a legitimate exercise of State authority over private business; and the Supreme Court of the United States, two only of its members dissenting, has decided that there is nothing in the Constitution of the United States, or its recent amendments, -which impugns its validity. It is, therefore, with diffidence I presume to question the soundness of the decision. [Sup. OL MUNN V. ILLINOIS. The validity of the legislation was, among other grounds, assailed in the State court as being in conflict with that provi- sion of the State Constitution which declares that no person shall be deprived of life, liberty, or property without due' pro- cess of law, and with that provision of the Fourteenth Amend- ment of the Federal Constitution which imposes a similar restriction upon the action of the State. The State court held, in substance, that the constitutional provision was not violated so long as the owner was not deprived of the title and posses- sion of his property; and that it did not deny to the legislature the power to make all needful rules and regulations respecting the use and enjoyment of the property, referring, in support of the position, to instances of its action in prescribing the inter- est on money, in establishing and regulating public ferries and public mills, and fixing the compensation in the shape of tolls, and in delegating power to municipal bodies to regulate the charges of hackmen and draymen, and the weight and price of bread. In this court the legislation was also assailed on the same ground, our jurisdiction arising upon the clause of the Fourteenth Amendment, ordaining that no State shall deprive any person of life, liberty, or property without due process of law. But it would seem from its opinion that the court holds that property loses something of its private character when employed in such a way as to be generally useful. The doc- trine declared is that property "becomes clothed with a public interest when used in a manner to make it of public conse- quence, and affect the community at large;" and from such clothing the right of the legislature is deduced to control the use of the property, and to determine the compensation which the owner may receive for it. When Sir Matthew Hale, and the sages of the law in his day, spoke of property as affected by a public interest, and ceasing from that cause to be junie privati solely, that is, ceasing to be held merely in private right, they referred to property dedicated by the owner to pub. lic uses, or to property the use of which was granted by the government, or in connection with which special privileges were conferred. Unless the property was thus dedicated, or some right bestowed by the government was held with the property, either by specific grant or by prescription of so long a time as Oct. 1876.] MUNN V. ILLINOIS. deprive any person of either. The provision has been supposed to secure to every individual the essential conditions for the pursuit of happiness; and for that reason has not been hereto- fore, and should never be, construed in any narrow or restricted sense. No State "shall deprive any person of life, liberty, or prop- erty without due process of law," says the Fourteenth Amend- ment to the Constitution. By the term "life," as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul com- muhicates with the outer world. The deprivation not only of life, but of whatever God has given to every one with life, for its growth and enjoyment, is prohibited by the provision in question, if its efficacy be not frittered away by judicial decision. By the term "liberty," as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal iights of others, as his judgment may dictate for the pro- motion of his happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment. The same liberal construction which is required for the pro- tection of life and liberty, in all particulars in which life and liberty are of any value, should be applied to the protection of private property. If the legislature of a State, under pretence of providing for the public good, or for any other raason, can determine, against the consent of the owdner, the uses to which private property shall be devoted, or the prices which the owner shall receive for its uses, it can deprive him of the prop- erty as completely as by a special act for its confiscation or destruction. If, for instance, the owner is prohibited from using his building for the purposes for which it was designed, it is of little consequence that he is permitted to retain the [Sup. Ct. MuNN v. IUMnoIs, title and possession; or, if he is compelled to take as compen- sation for its use less than the expenses to which he is sub- jected by its ownership, he is, for all practical purposes, deprived of the property, as effectually as if the legislature had ordered his forcible dispossession. If it be admitted that the legisla- ture has any control over the compensation, the extent of that compensation becomes a mere matter of legislative discretion. The amount fixed will operate as a partial destruction of the value of the property, if it fall below the amount which the owner would obtain by -contract, and, practically, as a complete destruction, if it be less than the cost of retaining its possession. There is, indeed, no protection of any value under the constitu- tional provision, which does not extend to the use and income of the property, as -well as to its title and possession. This court has heretofore held in many instances that a con- stitutional provision intended for the protection of rights of private property should be liberally construed. It has so held in the numerous cases where it has been called upon to give effect to the provision prohibiting the States from legislation impairing the obligation of contracts; the, provision being con- strued to secure from direct attack not only the contract itself, but all the essential incidents which give it value and enable its owner to enforce it. Thus, in Bronson v. Zinzie, reported in the 1st of Howard, it was held that an act of the legislature of Illinois, giving to a mortgagor twelve months within which to redeem his mortgaged property from a judicial sale, and prohibiting its sale for less than two-thirds of its appraised value, was void as applied to mortgages, executed prior to its passage. It was contended, in support of the act, that it affected only the remedy of the mortgagee, and did not impair the contract; but the court replied that there was no substan- tial difference between a retrospective law declaring a particu- lar contract to be abrogated and void, and one which' took away all remedy to enforce it, or incumbered the remedy with conditions that rendered it useless or impracticable to pursue it. And, referring to the constitutional provision, the court * said, speaking through Mr. Chief Justice Taney, that "it woald be unjust to the memory 6f the distinguished men who framed it, to suppose that it was designed to protect a mere ,barren and Oct. 1876.] MUNN V. ILLINOIS. abstract right, without any practical operation upon the busi- ness of life. It was undoubtedly adopted as a part of the Con- stitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execu- tion throughout this Union, by placing them under the protec- tion of the Constitution of the United States. And it would but ill become this court, under any circumstances, to depart from the plain meaning of the words used, and to sanction a distinction between the right and the remedy, which would render this provision illusive and nugatory, mere words of form, affording no protection and pxoducing no practical re- sult." And in Pumpelly v. Green Bay Company, 13 Wall. 177, the language of the court is equally emphatic. That case arose in Wisconsin, the constitution of which declares, like the consti- tutions of nearly all the States, that' private property shall' not be takdn for public use without just compensation; and this court held that the flooding of one's land by a dam constructed across arriver under a law of the State was a taking within the prohibition, and required compensation to be made to the owner of the land thus flooded. The court, speaking through Mr. Justice Miller, said: - "It would be a very curious and unsatisfactory result, if, in con- struing a provision of constitutiona:1 law, always understood to have been adopted for protection and security to the rights of the indi- vidual as against the government, and which has received the com- me)dation of jurists, statesmen, and commentators, as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of the word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction on the rights of the citi- zen, as those rights stood at the common law, instead of the gov- ernment, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors." [Sup. Ct. MUNN V. ILLINOIS. dition of the grant, and the State, in exercising its power of prescribing the compensation, only determines the conditions upon which its concession shall be enjoyed. When the privi- lege ends, the power of regulation ceases. Jurists and writers on public law find authority for the exer- cise of this police power of the State and the numerous regula- tions which it prescribes in the doctrine already stated, that every one must use and enjoy his property consistently with the rights of others, and the equal use and enjoyment by them of their property. "The police power of the State," says. the Supreme Court of Vermont, ' extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the pro- tection of all property in the State. According to the maxim, sic utere tuo ut alienum non Icedas, which, being of universal appli- cation, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure ot,,ers." Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 149. "We think it a settled principlegrowing out of the nature of well-ordered civil society," says the Supreme Court of Massachusetts, "that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community." Commonwealth v. Alger, 7 Cush. 84. In his Commentaries, after speaking of the protection afforded by the Constitution to private property, Chancellor Kent says: - "But though property be thus protected, it is still to be under- stood that the law-giver has the right ty" prescribe the mode and manner of using it, so far as may be necessary to prevent the abuse of (he right, to the injury or annoyance of others, or of the public. The government may, by. general regulations, interdict such uses of property as would create nuisances and become dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades, slaughter-houses, operations offensive to the. senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the-.midst of dense masses of pop. Oct. 1876.1 MUNN V. ILLINOIS. ulation, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. 2 Kent, 340. The Italics in these citations are mine. The citations show what I have already stated to be the case, that the regulations which the State, in the exercise of its police power, authorizes withrespect to the use of property are entirely independent of any question of compensation for such use, or for the services of the owner in connection with it. There is nothing in the character of the business of the defendants as warehousemen which called for the interference complained of in this case. Their buildings are not nuisances; their occupation of receiving and storing grain infringes upon no rights of others, disturbs no neighborhood, infects not the air, and in no respect prevents others from using and enjoying their property as to them may seem best. The legislation in question is nothing less than a bold assertion of absolute power by the State to control at its discretion the property and busi- ness of the citizen, and fix the compensation lie shall receive. The will of the legishlture is made the condition upon which the owner shall receive the fruits of his property and the just reward of his labor, industry, and enterprise. "That govern- ment," says Story, "can scarcely be deemed to be free where the rights of 'property are left solely dependent upon the will of a legislative body without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred." Wilkeson v. Le Land, 2 Pet. 657. The decision of the court in this case gives unrestrained license to legislative will. The 'several instances mentioned by counsel in the argument. and by the court in its opinion, in which legislation has nxed the compensation which parties may-receive for the use of their property and services, do not militate against the views I have expressed of the power of the State over the property of the citizen. They were mostly cases of public ferries, bridges, and turnpikes, of wharfingers, hackmen, and draymen, and of inter- est on money. In all these cases, except that of interest on money, which I shall presently notice. there was some special [Sup. Ct. MUNN V. ILLINOIS. privilege granted by the State or municipality; and no one, I suppose, has ever contended'that the State had not a right to prescribe the conditions upon which such privilege should be enjoyed. The State in such cases exercises no greater right than an individual may exercise over the use of his own prop- erty when leased or loaned to others. The conditions upon which the privilege shall be enjoyed being stated or implied in the legislation authorizing its grant, no right is, of course, impaired by their enforcement. The recipient of the privilege, in effect, stipulates to comply with the conditions. It matters not how limited the privilege conferred, its acceptance implies an assent to the regulation of its use and the compensation for it. The privilege which the hackman and drayman have to the use of stands on the public streets, not allowed to the ordinary coachman or laborer with teams, constitutes a sufficient warrant for the regulation of their fares. In the case of the warehousemen of Chicago, no right or privilege is conferred by the government upon them; and hence no assent of theirs can be alleged to justify any interference with their charges for the use of their property. The quotations from the writings of Sir Matthew Hale, so far from supporting the positions of the court, do not recognize the interference of the government, even to the extent which I have admitted to be legitimate. They state merely that the franchise of a public ferry belongs to the king, and cannot be used by the subject except by license from him, or prescription time out of mind; and that when the subject has a public wharf by license from the king, or from having dbdicated his private wharf to the public, as in the case of a street opened by him through his own land, he must allow the use of the wharf for reasonable and moderate charges. Thus, in the first quotation which is taken from his treatise De Jitre .Maris, Hale says that the king has "a right of franchise or privilege, that no man may set up a common ferry for all passengers without a prescription time out of mind or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the com- mon use of all the king's subjects passing that way; because it doth in consequent tend to a conmmon charge, and is become a thing of public interest and use, and every man for his passage Oct. 1876.] MUNN V. ILLINOIS. attached to a monopoly; but, so long as its warehouses were the only places which could be resorted to for that purpose, the company was bound to let the trade have the use of them for a reasonable hire and reward. The other judges of the court placed their concurrence in the decision upon the ground that the company possessed a legal monopoly of the business, having the only warehouses where goods imported could be lawfully received without previous payment of the duties. From this case it appears that it is only where some privilege in the bestowal of the government is enjoyed in connection with the property, that it, is affected with a public interest in any proper sense of the terms. It is the public pivilege conferred with the use of the property which creates the public interest in it. In the case decided by the Supreme Court of Alabama, where a power granted to the city of Mobile to license bakers, and to regulate the weight and price of bread, was sustained so far as regulating the weight of the bread was concerned, no question was made as to the right to regulate the price. 3 Ala. 137. There is no doubt of the competency of the State to prescribe the weight of a loaf of bread, as it may declare what weight shall constitute a pound or a ton. ',But I 'deny the power of any legislature under our government to fix the price which one shall receive for his property of any kind. If the power can be exercised as to one article, it may as to all articles, and the prices of every thing, from a calico gown to a city mansion, may be the subject of legislative direction. Other instances of a similar character may, no doubt, be cited of attempted legislative interference with the rights of property. The act of Congress of 1820, mentioned by the court, is one of them. There Congress undertook to confer upon the city of Washington power to regulate the rates of wharfage at private wharves, and the fees for sweeping chim- neys. Until some authoritative adjudication is had upon these and similar provisions, I must adhere, notwithstanding the leg- islation, to my opinion, that those who own property have the right to fix the compensation at which they will allow its use, and that those who control services have a right to fix the com- pensation at which they will be rendered. The chimney- sweeps may, I think, safely claim all the compensation which [Sup. Ct. MUNN v. ILLINOIS. they can obtain by bargain for their work. In the absence of any contract for property or services, the law allows only a reasonable price or compensation; but what is a reasonable price in any case will depend upon a variety of considerations, and is not a matter for legislative determination. The practice of regulating by legislation the interest receiv- able for the use of money, when considered with reference to its origgin, is only the assertion of a right of the government to control the extent to which a privilege granted by it may be exercised and enjoyed. By the ancient common law it was unlawful to take any money for the use of money: all who did so were called usurers, a term of great reproach, and were exposed to the censure of the church; and if, after the death of a person, it was discovered that he bad been a usurer whilst living, his chattels were forfeited to the king, and his lands escheated to the lord of the fee. :No action could be maintained on any promise to pay for the use of money, because of the unlawfulness of the contract. Whilst the common law thus condemned all usury, Parliament interfered, and made it lawful to take a limited amount of interest. It was not upon the theory that the legislature could arbitrarily fix the compensa- tion which one could receive for the use of property, which, by the general law, was the subject of hire for compensation, that Parliament acted, but in order to confer a privilege which the common law denied. The reasons which led to this legislation originally have long since ceased to exist; and if the legislation is still persisted in, it is because a long acquiescence in the exercise of a power, especially when it was rightfully assumed in the first instance, is generally received as sufficient evidence of its continued lawfulness. 10 Bac. Abr. 264.* There were also recognized in England, by the ancient com- mon law, certain privileges a belonging to the lord of the manor, which grew out of the state of the country, the condi- tion of the people, and the relation existing between him and * The statute of 13 Eliz. e. 8, which allows ten per cent interest, recites "that all usury, being forbidden by the law of God, is sin, and detestable;" and the stat- ute of 21 James the First, reducing the rate to eight per cent, provided that noth- ing in the law should be "construed to allow the practice of usury in point of religion or conscience," -a clause introduced, it is said, to satisfy the bishops, who would not vote for the bill without it. Oct. 1876.] MUNN V. ILLINOIS. his tenants under the feudal system. Among these was the right of the lord to compel all the tenants within his manor to grind their corn at his mill. No one, therefore, could set up a mill except by his license, or by the license of the crown, unless he claimed the right by prescription, which presupposed a grant from the lord cr crown, and, of course, with such license went the right to regulate the tolls to be received. Woolrych on the Law of Waters, c. 6, of Mills. Hence originated the doctrine which at one time obtained generally in this country, that there could be no mill to grind corn for the public, with- out a grant or license from the public authorities. It is still, I believe, asserted in some States. This doctrine being recog- nized, all the rest followed. The right to control the toll accompanied the right to control the establisbnent of the mill. It requires no comment to point out the radical differences between the cases of public mills and interest on money, and that of the warehouses in Chicago. No prerogative or privi- lege of the crown to establish warehouses was ever asserted at the common law. The business of a warehouseman was, at common law, a private business, and is so in its nature. It has no special privileges connected with it, nor did the law ever extend to it any greatsr protection than it extended to all other private business. N o reason can be assigned to justify legisla- tion interfering with the legitimate profits of that business, that would not equally justify an intermeddling with the business of every man in the community, so soon, at least, as his business became generally useful. I am of opinion that the judgment of the Supreme Court of Illinois should be reversed. MR. JUSTICE STROIG. When the judgment in this case was announced by direction of a majority of the court, it was -well known by all my brethren that I did not concur in it. It had been my purpose to prepare a dissenting opinion, but I found no time for the preparation, and I was reluctant to dis- sent in such a case without stating my reasons. Mr. Justice Field has now stated them as fully as I can, and I concur in what he has said. [Sup- 0 .