PEOPLE v. BUDD.
PEOPLE ex rel. ANNAN v. WALSH.
PEOPLE ex rel. PINTO v. WALSH.
Court of Appeals
October, 1889.
189 THE GRAIN ELEVATOR CASES. (Affirming 6 N. Y. Crim. Rep. 57.)
The statute,
The provision of the statute (section 1) restricting to the actual cost the charge for trimming and shoveling to the leg of the elevator, in the process of handling grain, which vessels are required to pay, was intended to exclude any charge by the elevator beyond the sum specified for the use of its machinery in shoveling, and the ordinary items of operating it, and the outside labor required for bringing the grain to the leg of the elevator.
The elevator owners can not separate the charges for the various parts of the same service,—the charge for the use of the steam shovel furnished by them for elevating the grain, and the sum which may be agreed upon between them and the laborers who shovel the grain to the leg of the elevator,—and thereby, under cover of payment for the use of the steam-shovel, exact of the carrier a sum for elevating grain beyond the rate fixed by the act.
Only when required by cogent reasons, or when compelled thereto upon unanswerable grounds, will a court declare a statute unconstitutional.
A statute does not deprive the citizen of his liberty or property, in a constitutional sense, simply because it abridges freedom of action, or regulates occupations, or subjects individual property to restraints in matters indifferent, except as they affect public interests, or the rights of others.
Regulation, under the police power, infringes the constitutional
While the uses to which a man may devote his property, the price which he may charge for such use, how much he may demand or receive for his labor, and the method of conducting his business, are, as a general rule, not the subject of legislative regulation; nevertheless, when an employment becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen; in other words, when it becomes a virtual monopoly to which a citizen is compelled to resort, and by means of which a tribute can be exacted from the community, it is the subject of regulation by legislative power.
In the power of legislative exercise the court has nothing to do with the policy or wisdom of interference in a particular case, or with the adequacy or inadequacy of the compensation authorized.
The power of the legislature to control and regulate elevator charges rests upon the nature and extent of the business, the existence of a virtual monopoly, the benefit derived from the canal, which is kept a free highway at the expense of the State, and which creates the business of elevating and renders it profitable; the interest to trade or commerce, the relation of the business to the prosperity and welfare of the State, and the practice of legislation in analogous cases. These collectively create an exceptional case and justify legislative regulation.
The joinder of several misdemeanors in the same indictment is not a cause for reversal of the judgment where there is a general verdict of guilty, and the sentence is single and appropriate to each of the misdemeanors upon which the conviction was had.
Appeal by defendant, J. Tallman Budd, from a judgment of the General Term of the Superior Court of Buffalo of January 2, 1889, affirming a judgment of the criminal branch of that court of November 29, 1888, Hon. RUPERT C. TITUS, presiding, entered upon a conviction of the defendant of a violation of the provisions of the Grain Elevator Act (
Appeal by Edward Annan, relator, from an order of the General Term of the Supreme Court in the Second Department, of October 2, 1888, dismissing writs of habeas corpus to bring up the person of, and certiorari to inquire
An appeal was also taken by the relator Francis E. Pinto from a similar order of the same General Term. The cases of Annan and Pinto were heard and decided together.
The facts and the briefs of counsel in the Annan and Pinto cases are given in the report of the decision of the General Term of the Supreme Court at 6 N. Y. Crim. Rep. 57.
In the Court of Appeals the three cases were argued and decided together.
Spencer Clinton, for defendant appellant, J. Tallman Budd.
Charles F. Tabor, Attorney-General, and George D. Quinby, District Attorney of Erie County, for the people, respondents, in People v. Budd.
Wm. N. Dykman, for relators appellants, Annan and Pinto.
Charles F. Tabor, Attorney-General, James D. Ridgway, District Attorney of Kings County, and J. A. Hyland, for the people, respondents, in the case of Annan and Pinto.
In the case of People v. Budd, the Court of Appeals delivered the following opinion:
ANDREWS, J.—The main question upon this record is whether the legislation fixing the maximum charge for elevating grain, contained in the act,
The defendant was indicted for a violation of the
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 cover of charging for the use of the steam shovel, exact of the carrier a sum for elevating beyond the rate fixed by the act.
There is a second answer to the proposition. It was undisputed that the defendant exacted a greater charge for elevating than the sum allowed by the act. This was proven by testimony on the part both of the prosecution and the defendant. The verdict of guilty was followed by infliction of the lowest penalty for a single offense. The verdict and sentence were justified without considering whether an offense was made out under the second allega-
Passing, therefore, this point, we come to the main question, and that is, 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 system of the American States is in many cases attended with great perplexity and difficulty. The people have set into the frame-work of 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 infringement of the constitutional guaranty. The cases where the right of property is set aside by positive laws are various. Distress, executions, forfeitures, taxes, are of this description, “wherein,” said Lord Camden, in Entick v. Carrington (19 How. St. Tr. 1,029), “every man by common consent gives
But the very existence of government presupposes the right of the sovereign power to prescribe regulations demanded by the general welfare for the common protection of all. This principal inheres in the very nature of the social compact. The protection of private property is one of the main purposes of government, but no one holds his property by such an absolute tenure as to be freed from the
The power of the British Parliament is not the test of legislative power under the written constitution of the American States. But the great landmarks of civil liberty embodied in our State constitutions were established by our English ancestors, and upon questions such as the one now before us we may study with profit the principles and practice of the law of England. When a statute is chal-
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 Illinois, 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, 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
The legislation in question, in Munn v. Illinois, was similar to and is not distinguishable in principle from the act,
In People ex rel. etc. v. Boston & Albany R. R. Co., which related to the power of the Legislature to compel the defendant to build a bridge at a point where the railroad of the defendant crossed a highway, the court, by EARL, J., said: “The whole subject of the legislative power over railroads, and even private persons holding and using their property for public purposes, has been so fully discussed recently in the Supreme Court of the United States, in the Granger cases, and in the Chicago elevator case, as to make further discussion unnecessary here. Such legislation violates no contract, takes away no property, and interferes with no vested right.”
In Bertholf v. O‘Reilly, Munn v. Illinois was cited as illustrating the scope of the police power in legislation. In Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., which involved the question of the right of the Legislature to regulate and reduce the fare on street railways in the City of Buffalo, which it was claimed affected a contract entered into between two of the companies prior to the passage of the act, this court affirmed the validity of the law, and RUGER, Ch. J., in pronouncing the opinion of the court, quoted the language of WAITE, Ch. J., in the Munn case, and also the language of BRADLEY, J., in the Sinking Fund cases, 99 U. S. 700, 747, declaring the principle decided in the Munn case, and these quotations were quite irrelevant unless the doctrine stated therein was intended to be approved. In People v. King the doctrine of the Munn case was applied by this court to uphold the validity of a statute which prohibited the exclusion of any citizen from theaters or other places of amusement, by reason of race, color or previous condition of servitude, and a conviction in that case was sustained, where the defendant, the proprietor of a skating-rink, erected on his own property, opened it to the public, but excluded therefrom, on the occasion of a public entertainment, on the ground of race and color, a colored person who sought admission. The court is not concluded by these cases, or any of them, from re-examining the principle on which the decision in Munn v. Illinois proceeded, but we can not overrule and disregard that case without, as I think, subverting the principle of our decision in the King case, and certainly not without disregarding many deliberate expressions of this court in approval of the principle of that decision.
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 in violation of this constitutional principle, originated with the adoption of the
Prior to the adoption of the
It can not be determined, we think, that a decision of the Federal court, sustaining a State statute is res adjudicata and binding upon a State court, when the same ques-
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 relation to each other and to the community at large, to secure the mutual and equal rights of all, and to 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 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 universality of its presence, nevertheless leave its boundaries and limitations indefinite, and impose upon the court the necessity and duty as each case is presented, to determine whether that particular statute falls within or outside of its appropriate limits. “It is much easier,” said Chief Justice SHAW, in Commonwealth v. Alger (7 Cush. 53), “to perceive and realize the existence of this power than to mark its boundaries or to prescribe limits to its exercise.”
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 method 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 regulation in the particular case, the
There can be no doubt that where the Government confers a special privilege upon a citizen, not of common right, it may annex such conditions upon its enjoyment as it sees fit. Nor can there be any question that where an individual has a legal monopoly to use his property for a public purpose, and the public have an interest in the use, he is subject to an obligation cast upon him by the common law to demand only a reasonable compensation for the use. This is stated with great clearness by Lord ELLENBOROUGH, in Allnutt v. Inglis (12 East, 569). “There is,” he said, “no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his property or the use of it; but if, for a particular purpose, 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 he will take the benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms.” But the question is whether the power of the Legislature to regulate charges for the use of property and the rendition of services connected with it depends in every case upon the circumstances that the owner of the property has a legal monopoly or privilege to use the property for a particular purpose, or has some special protection from the Government, or some peculiar benefit in the prosecution of his business. Lord HALE, in the treatises De Portibus Maris and De Jure Maris, so largely quoted from in the opinions in the Munn case, used the language that when private property is “affected with a public interest, it ceases to be juris privati only,” in assigning the reason why ferries and public wharves
When we recur to the origin and purpose of this prerogative, it will be seen that it was vested in the king as a means by which a business, in which the whole community were interested, could be regulated. In other words, it was simply one mode of exercising a prerogative of Government; that is to say, through the sovereign instead of through Parliament, in a matter of public concern. This and similar prerogatives were vested in the king for public purposes, and not for his private advantage or emolument. Lord KENYON, in Rorke v. Dayrell (4 Term R. 410), said: “The prerogatives of the crown are not given for the personal advantage of the king; but they are allowed to exist because they are ‘beneficial to the subject,‘” and it said in Chitty on Prerogatives (page 4): “The splendor, rights, and power of the crown were attached to it for the benefit of the people, and not for the private gratification of the subject.” And Lord HALE, in one of the passages referred to, in stating the reason why a man may not set up a ferry without a charter from the king, says: “Because it doth in consequence tend to a common charge and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under public regulation.” The right to take tolls for wharfage in a public port was also a franchise, and tolls, as Lord HALE says, could not be taken without lawful title by charter or prescription (De Portibus Maris, page 77). But the king, if he maintained a public wharf, was under the same obligation as a subject to exact only reasonable tolls; nor could the king authorize unreasonable tolls
The king, in whom the franchise of wharfage was vested as a royal prerogative, was himself, as has been shown, subject to the same rule as the subject, and could only exact reasonable wharfage, nor could he by express license authorize the taking of more. The language of Lord HALE, that private property may be affected by a public interest, can not justly, we think, be restricted as meaning only property clothed with a public character by special grant or charter of the sovereign.
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 carry for a reasonable compensation. They were not at liberty to charge whatever sum they pleased, and even where the price of
It is competent for the Legislature to change the rule of reasonable compensation, as the matter was left by the common law, and prescribe a fixed and definite compensation for the services of common carriers. This principle was declared in the Munn case, which was cited with approval on this point in Sawyer v. Davis (136 Mass. 239). It accords with the language of Chief Justice SHAW in Commonwealth v. Alger (supra): “Whenever there is a general right on the part of the public, and a general duty of the land-
Where the right of the Legislature to regulate the fares or charges on railroads is reserved by the charter of incorporation, or the charter was granted subject to the general right of alteration or repeal by the legislature, the power of the legislature in such cases to prescribe the rate of compensation is a part of the contract, and the exercise of the power does not depend upon any general legislative authority to regulate the charges of common carriers. But the cases are uniform that where there is no reservation in the charter the Legislature may nevertheless interfere and prescribe or limit the charges of a railroad corporations. The Granger cases, supra; Dow v. Beidelman, 125 U. S. 680; Earl, J., in People ex rel. v. Boston and Albany Railroad Company, supra; Ruger, Ch. J., in Buffalo East Side Railroad Company v. Buffalo Street Railroad Company (supra).
The power of regulation in these cases does not turn upon the fact that the entities affected by the legislation are corporations deriving their existence from the State, but upon the fact that the corporations are common carriers, and therefore subject to legislative control. The State in constituting a corporation may prescribe or limit its powers and reserve such control as it sees fit, and the body accepting the charter takes it subject to such limitations and reservations, and is bound by them. The considerations upon which a corporation holds its franchise are the duties and obligations imposed by the act of incorporation. But when a corporation is created, it has the same rights and the same duties, within the scope marked out for its action, that a natural person has. Its property is secured to it by the same constitutional guaranties, and in the management of
The mere fact of a corporate character does not extend the power of legislative regulation. For illustration, it could not justly be contended that the Act of 1888 would be a valid exercise of legislative power as to corporations, organized for the purpose of elevating grain, although invalid as to private persons conducting the same business. The conceded power of legislation over common carriers is adverse to the claim that the police power does not in any case include the power to fix the price of the use of private property, and of services connected with such use, unless there is a legal monopoly, or special governmental privileges or protection have been bestowed. 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 out of the range of the police power as formerly recognized, the regulation of which by legislation would now be regarded as invading personal liberty. But society could not safely surrender the power to regulate by law the business of common carriers. Its value has been infinitely increased by the conditions of modern commerce, under which the carrying trade of the country is, to a great extent, absorbed by corporations, and as a check upon the greed of these consolidated interests the legislative power of regulation is demanded by the most imperative public interests.
The same principle upon which the control of common carriers rests, has enabled the State to regulate in the public interest the charges of telephone and telegraph companies,
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 that the business of elevating grain has a vital relation to commerce in one of its most important aspects. Every excessive charge made in the course of the transportation of grain is a tax on commerce, and the public have a deep interest that no exorbitant charges shall be exacted at any point upon the business of transportation. The State of New York, in the construction of the Erie Canal, exhibited its profound appreciation of the public interest involved in the encouragement of commerce. The Legislature of the State, in entering upon the work of constructing a waterway between
The same question came up a second time in Stanton v. Allen (5 Den. 434), and was decided the same way. In the
The third element of publicity which tends to distinguish the business of elevating grain from general commercial pursuits is the practical monopoly which is or may be connected with its prosecution. In the city of Buffalo the elevators are located at the junction of the canal with Lake Erie. The owners of grain are compelled to use them in transferring cargoes. The area upon which it is practicable to erect them is limited. The structures are expensive, and the circumstances afford great facility for combination among the owners of elevators to fix and maintain an exorbitant tariff of charges, and to bring into the combination any new elevator which may be erected, and to employ it or leave it unemployed, but in either case permit it to share in the aggregate earnings. It is evident that if such a combination in fact exists, the principle of free competition in trade is excluded. The precise object of the combination would be to prevent competition. The result of such a combination would necessarily be to subject the lake vessels and canal-
It is under 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,” says Chase, Ch. J., in the License Tax case (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 the 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 the 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 fact that they are assigned stands in the public streets; that the Legislature may regulate the toll on ferries, because the right to establish a ferry is a franchise, and, therefore, the business is subject to regulation; that the right to regulate wharfage rested upon the permission of the sovereign to extend wharves into the bed of navigable streams, the title
The reason assigned for the right to regulate interest takes no account of the fact that the prohibition by the ancient common law to take interest at all was a regulation, and this manifestly did not rest upon any benefit conferred on the lenders of money. It was a regulation springing from a supposed public interest, and was peculiarly oppressive on a certain class. A law prohibiting the taking of interest on the use of money would now be deemed a violation of a right of property. But the material point is that the prohibition, as well as the regulation of interest, was based upon public policy, and the present conceded right of regulation does not have its foundation in any grant or privilege conferred by the sovereign.
The attempts made to place the right of public regulation in these cases upon the ground of special privilege conferred by the public on those affected can not, we think, be supported. The underlying principle is that business of
It is most frequently exerted in the maintenance of public order, the production of the public health and public morals, and in regulating mutual rights of property, and
There is little reason, under our system of government, for placing a close and narrow interpretation on the police power, or in restricting its scope, so as to hamper the legislative power in dealing with the varying necessities of society, and the new circumstances as they arise calling for legislative intervention in the public interest. Life, liberty and property have a substantial protection against serious invasion by the Legislature in the traditions of the English-speaking race, and a pervading public sentiment which is quick to resent any substantial encroachment upon personal freedom or the rights of property. In no country is the force of public opinion so direct and imperative as in this. The Legislature may transgress the principles of the Constitution. It has done so in the past, and it may be expected that it will sometimes do so in the future. But unconstitutional enactments have generally been the result of haste or inadvertence, or of transient and unusual conditions in times of public excitement which have been felt and responded to in the halls of legislation.
The framers of the Government wisely interposed the judicial power and invested it with the prerogative of bringing every legislative act to the test of the Constitu-
We here conclude our examination of the important question presented by this case. The division of opinion in this and other courts is evidence of the difficulty which surrounds it. But it is ever to be remembered that a statute must stand so long as any reasonable doubt can be indulged in favor of its constitutionality. We are of opinion that the statute of 1888 is constitutional, as a whole, and that, although it may comprehend cases which, standing alone, might not justify legislative inference, yet they must be governed by the general rule enacted by the Legislature.
The judgment should be affirmed.
Judge GRAY, in this case, delivered the following dissenting opinion:
GRAY, J.—I am unable to assent to the views expressed in the opinion of the court in this case. Judge PECKHAM has 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. The plea for the extension of the police power—to the extent named, of interfering with the conduct of a legitimate private business enterprise—seems to me to find no support in reason, and it certainly tends to nullify that provision of the Constitution which is supposed to guarantee to each individual that he shall not be deprived of his life, or liberty, or property, without due process of law.
I understand it to be the general rule that the individual
I believe the constitutional rights of the individual are directly attacked by this legislation. Under the pretense
I can not 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 in 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 have fixed for a certain line of goods. It seems to me that the theory of such legis-
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 this 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.
PECKHAM, J., concurs.
Judgment affirmed.
In People ex rel. Annan v. Walsh, and People ex rel. Pinto v. Walsh, the orders of the General Term dismissing
In these two cases, Judge PECKHAM wrote the following dissenting opinion:
PECKHAM, J.—[Dissenting.] 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 violate any provision of the Federal Constitution, nor infringe upon any privilege or immunity protected by it.
The facts in these New 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 in limine 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 the
When the privilege or immunity is claimed under our State Constitution, and we believe that it is rightfully and legally claimed, although the claim rests upon a clause which is similar to the one in the Federal court; nevertheless we ought, as we think, to give expression to our own judgment, under the sanction of our official duty, to declare the law as we believe it to exist, notwithstanding we differ with the conclusions arrived at by the Federal court. In so doing we decide against no right, privilege or immunity claimed under the Federal Constitution or laws, but, as a State court, we decide in a matter over which we have full jurisdiction, upon the proper construction to be given to the fundamental law of the State. We, therefore, proceed to give our views on the subject-matter involved in these appeals.
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
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 & Michigan Southern Railroad Company, 84 Id. 157, 186; People v. King, 110 Id. 418, 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 the act of an intoxicated person, against the owner of real property, whose only connection with the injury is that he leased the premises where the liquor causing the intoxication was sold or given away, with knowledge that intoxicating liquors were to be sold thereon.
In speaking of the police power, ANDREWS, J., in the 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 im-
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 nor disapproved. Nothing in Boardman v. Lake Shore, etc. Co., 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 admission on equal terms with others to public resorts and to equal enjoyment of privileges of a quasi public character, was a valid law as applied to defendant‘s place of amusement. It was held so to be.
The police power, it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. No 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, as theaters, etc., upon the ground that they are properly the subject of police regulation, as they are generally licensed by the State or municipality wherein they exist. See
In the King case, Judge ANDREWS said: “The principle stated by WAITE, Ch. J., in Munn v. Illinois, which received the assent of a majority of the court, applies in this case,” the principle being that where one devotes his property to a use in which the public have an interest, he, in effect, grants to the public an interest in such use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. There was nothing in the case in this court which affirmed the correctness of the doctrines of the Munn case, as applied to the facts upon which the decision in that case was based.
In Buffalo East Side Railway Co. v. Buffalo Street Railway Co. (supra), both parties were corporations. RUGER, Ch. J., said it was unnecessary to discuss the proposition with much fullness, as it was conceded by the appellant
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 transshipment 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 have had the effect of clothing the property with this public interest, and hence to have imposed upon its owners the necessity of submitting to the limitation of their compensation. It has never been carried to any such extent in this State. Various instances of the application of these principles were cited by way of illustration, and it was asserted that no new principle of the law was created, but simply an application of an old principle to a new and different state of facts.
The learned chief justice, who delivered the opinion of a majority 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,
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
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
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 principle that no man can be compelled to enter into business relations with another unless the party carrying on the business shall have received some privilege, right, or franchise from the sovereign power, when such compulsion may be annexed to the grant. The principle should not be extended. To include within its grasp the case of a warehouseman who has no privilege from the sovereign power, but simply builds his warehouse on the shores of a navigable stream and upon his own property, would be to overturn cases adjudged in this court and regarded as the law for many years past. The same is true of the owner of
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
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 a 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 from those of to-day; and laws which might possibly be pardoned on account of ignorance, sparseness of population, difficulties of communication and rural and unsettled habits of life, can have no such justification in our times.
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
The famous statute of
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
In speaking of the above-mentioned statute of Elizabeth, the late Mr. W. Stanley Jevons, in his little work on “The State in Relation to Labor,” 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 treatment 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 regarding 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 involving an interference with the private concerns of the subject, were, of course, colored by the general ideas as to the proper function of government then existing. This great magistrate, it will be remembered,
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 opinion 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
That learned author, in speaking on this same subject, says, in same volume, pages 737, 738, 739: “What circumstances shall affect property with a 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 a 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
The right arises from the use of the property of the public by the license of 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 simply from convenience of location, or
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 Munn 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 Munn 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 with 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
Commenting on the Munn case, it is said, in
There is some evidence, also, that the decision in the Munn case 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
Upon 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, 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
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 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
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 use 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
The decision in the Munn 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 change 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 their 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 case, a right created by license from the crown or by virtue of an act of Parliament. See
It was no where 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 combinations 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 MILLER) that the Munn case presented the question whether one engaged in a public business in which all the public had a right to require 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.
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 his own property, and the public has no right to demand his services; the answer would be, you have devoted your property to a public use because
If a man should erect on his own land a large steam mill to grind corn, and, by reason of his superior facilities, large numbers of persons should resort to it for the purpose of having their corn ground, has he devoted his property to a public use because of the extent to which the public make use of his property for the purpose for which he erected or fitted it up? So long as no person has the right to make use of such property against the will of the owner, and so long as he neither exercises nor receives any special privilege from the State, can it be plausibly maintained in this State that it can impose upon him a limitation as to the amount which he is to receive for the use of his own property?
Nothing like this question was discussed or decided in Township 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 GRAY, in Head v. Amoskeag, etc. Co., 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
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 Co., 3 Barb. 42, 47, it was stated that no exercise of any such assumed right (that of eminent domain) had ever been attempted by our Legislature in favor of mills of any kind, and it was said that sites for steam-engines, hotels, churches and other public conveniences might as well be taken by its exercise.
In Weismer v. Village of Douglas (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 was 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
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 to 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 Mr. Justice WHEELER is referred to as a very able examination of the subject of what is a public use. If the power were
The clause in our Constitution that no person shall be deprived of life, liberty or property without due process of law (
These cases hold that the liberty mentioned in the bill
The case of Vanderbilt v. Adams, 7 Cow. 349, was decided by our Supreme Court in the early part of the century. The facts show a clear case for the exercise of the authority claimed under the of the Legislature providing for the regulation of the harbor of New York. The plaintiff was the owner of a private wharf, such a one, I assume, as is spoken of in the cases of Langdon v. Mayor, 93 N. Y. 129, and Williams v. Mayor, 105 Id. 419, as I know of no other kind of private wharf in New York. It was held that the wharf was subject to the harbor regulations contained in the legislative act, because such regulations were merely an exercise of the police power necessary to prevent confusion and to promote the peace and good order necessary to be observed in a crowded harbor, such as New York was even then regarded. It was held that the city had never, by its grant of the land under water, or of the right to build a wharf, parted with the right which it had received under its charter over the subject-matter of the wharves and their regulation.
The difference of title of shore-owners on the New York and Brooklyn sides of the East River is discussed in Wetmore v. Atlantic White Lead Co., 37 Barb. 70, and referred to and recognized in the case of same plaintiff against
The License Cases, 5 How. 504, 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 of the power of sovereignty, which is, as the learned chief justice said, the power to govern men and things within the limits of its dominion.
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 comes 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 to its exercise.
These defendants are the owners or lessees of certain
The defendants are situated entirely different 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
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. Now, 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 floats on the public waters of the State, and its owners have received no kind of license, privilege or immunity from the State, in any way special in its nature, or which is not common to all the people of the State. How, then, has the owner devoted it to a public use? It is claimed that he has done so because the elevator or warehouse is to be used to elevate or store a vast amount of grain which comes from the West seeking transportation through the Erie Canal; and because it costs a large amount of money to build such structures, and owing to the facility and cheapness with which the elevator does the work, as compared with the labor of individuals, those who own the grain, or those who are interested in its transportation, are compelled to use such elevator if they desire to successfully compete in the business of transportation and in loading or unloading of such grain. Hence, it is said, a virtual monopoly exists, and the persons who own it are under the regulating power of the Legislature as to their compensation.
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. No 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.
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,
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
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 limit 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 warehousemen who are members of that body. If that be the fact, it constitutes in no view of the subject a monopoly. What has already been said upon the subject applies in equal degree to such an argument; nor have the defendants thereby received any privilege or franchise from the State.
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
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 legislative aid may be given to the class in possession thereof in its contests with rival classes or interests in all sections and corners of the industrial world. We shall have a recurrence of legislation which, it has been supposed, had been outgrown, not only as illegal, but as wholly useless for any good effect, and only powerful for evil. Contests of such a nature are productive only of harm. The only safety for all is to uphold, in their full vigor, the healthful restrictions of our Constitution, which provide for the liberty of the citizen, and erect a safeguard against legislative encroachments thereon, whether exerted
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 channels 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 above the average, capital, if allowed absolute freedom and legal protection, will flow into the business until there is enough invested to do all or more than all the work offered, and then, by the competition of capital, the rate of compensation would come down to the average. Such, at least, would be the tendency, and it could only be averted by combination among the owners of the property, which could not be long sustained in the face of perfect freedom to all to invest in such undertakings. That they are expensive,
The legislation under consideration is not only vicious in its nature, communistic in its tendency, and, in my belief,
The orders of the General and Special Terms of the Supreme Court should, therefore, be reversed, and the relators discharged.
Orders in this case affirmed on the opinion in People v. Budd. RUGER, Ch. J., ANDREWS, EARL, DANFORTH, and FINCH, JJ., concur.
PECKHAM, J., reads for reversal, in which GRAY, J., concurs.
Orders affirmed.