The defendants were convicted under R. S., c. 57, § § 5 and 6, as amended by the Act of 1885, c. 332, on two several counts; first, of refusing to receive grain at their gristmill there tendered to be ground ; second, of taking excessive toll. The defendants have exception to the ruling of the court that they were bound to receive the grists of grain offered, and grind th'e same for the toll specified by the statute, and that an agreement for toll in excess of that fixed by statute would be no defense.
The case does not show what kind of a mill the defendants operated, nor whether it was a public or private mill, nor whether it was a 'water mill, steam mill or wind mill. It assumes, however, that it was a grist-mill, used for grinding grain for the public.
Exceptions must show sufficient facts to make the ruling erroneous. Reed v. Reed, 70 Maine, 504. In this case, therefore, if the ruling excepted to be correct, and the statute under which the conviction was had be constitutional when applied to any kind of a grist-mill, judgment must be entered
Assuming the mill to be a public mill, and the statute under Avhich the conviction Avas had to be valid, an agreement betAveen the owner of the grain and the defendants, for toll in excess of the statute quantity, can be no defense. The act of the defendants in taking excessive toll was just as much in defiance and AÚolation of the statute, when taken by agreement with the owner of the grist, as if taken without his consent. The defendants’ act is prohibited by the statute. They were required to run their public mill for statute toll, with equal dispatch for all the patrons of their mill. They were required to receive grists and grind them in their turn, without motive for unequal dispatch to those willing to pay an extra price for it. The taking of usury by agreement with the borroAver of money is analogous. Freedom from blame on the part of the lender is not a bar to the borrower’s right to recover back the usury. Houghton v. Stowell, 28 Maine, 215. The statute under which the conviction Avas had imposes no such condition.
But it is stoutly asserted that the statute is unconstitutional as an invasion of the private right of enjoyment of property. The mill act of Maine applies to all water mills ; and whether its validity results from the exercise of eminent domain, as supposed by many cases, Jordan v. Woodard, 40 Maine, 317 ; Great Falls Mfg. Co. v. Fernald, 47 N. H. 444; Olmstead v. Camp, 33 Conn. 532, and others cited by Gould on Waters, § 253, and by the Supreme Court in Head v. Amoskeag Mfg. Co. 113 U. S., 9, or from the proper regulation of the rights of riparian owners, so as to best serve the public welfare, having-due regard to the interests of all, as held in Head v. the Amoskeag Mfg. Co. supra, and in Murdock v. Stickney, 8 Cush. 113, and remarked by the Court in Lowell v. Boston, 111 Mass. 466, it is unnecessary now to consider.
It is conceded by all authorities that the public use of property by the individual is within the scope of legislative control. And it matters not whether the use be authorized by express statute
It is conceded by all authorities that common carriers, common ferries, common roads, common wharves, common telegraphs and common telephones, etc., and common grist-mills and
Mills for the grinding of grain and for the sawing of lumber for all comers have been aided or established by the legislature from the earliest colonial times. Those mills were usually water mills; butitisof no moment what the propelling power may be. Burlington v. Beasley, 94 U. S. 310. They have always been considered so necessary for the existence of the community that it was proper for government to foster or maintain them ; and in the absence of government aid, the individual proprietor, not pretending to serve the public, might maintain such mills as private mills, free from legislative interference, precisely as he might maintain a store, shop or other private business ; but when such proprietor makes his mill public, assumes to serve the public, then he dedicates his mill to public use and it becomes a public mill, subject to public regulation and control. He is not compelled to continue such public use, but so long as he does, he becomes a public servant and may be regulated by the public.
In the present case, the mill must be considered a public mill and rightfully within legislative control. No suggestion is made that the statute regulation is unreasonable, and therefore it is unimportant to consider whether the reasonableness of the statute regulation be a legislative or judicial function.
Exceptions overruled..