Bridge v. Warren Bridge; but no lawyer ever doubted that Justice Grier-speaking for himself—Mr. Justice Field, and Chief Justice Chase reaffirmed the opinion of Taney, when he said, in his opinion in the Binghampton Bridge case: "But, assuming a power for one legislature to restrain the power of future legislatures, those who assert that it has been exercised should prove their assertion beyond a doubt. Such intention must be clearly expressed in the letter of the statute, and not left to be discovered by astute construction and inferences. Although an act of incorporation may be called a contract, the rules of construction applied to it are admitted to be the reverse of those applied to other contracts." If there were still room for doubt, the opinion in the third of Otto would seem to annihilate it.

The opinion of Taney in the Bridge case was, as Story felt, a great departure from the principles underlying the opinion of Marshall in Fletcher v. Peck and in the College

case.

The opinion in Munn v. The People is, in effect, a far greater one. This decision is not put upon the ground that the owners of the elevators, as private individuals, stand as they would if, in the same capacity, they had owned the Suspension Bridge-the connecting link between two great public thoroughfares.

That artificial,—in the respects now under discussion-have at most no greater rights than natural, persons, is one of the principles underlying this decision.

If the court can look at the facts in the case of private individuals-take judicial notice of them-in order to deter mine whether any "employment" or "business" has been "clothed with a public interest," it can do so in the case of corporations. If they could do it in Munn v. The People they could in Trustees v. Woodward.

What were the purposes for which Dartmouth College was incorporated, and what were the facts? The charter thus sets forth the purposes: "KNOW YE THEREFORE, That We, considering the premises, and being willing to encour age the laudable and charitable design of spreading Chris

tian knowledge among the savages of our American wilderness, and also that the best means of education be established in our Province of New Hampshire, for the benefit of said Province, do * * will, ordain, grant, and

constitute that there be a College erected in our said Province of New Hampshire, by the name of DARTMOUTH COLLEGE, for the education and instruction of youth of the Indian tribes in this land in reading, writing, and all parts of learning which shall appear necessary and expedient for civilizing and christianizing children of pagans, as well as in all liberal arts and sciences, and also of English youth and any others."

The doors of the college have been open for more than a hundred years to all who sought its facilities. The college prescribed the terms on which they were admitted, fixed the compensation, and gave notice thereof to the world. Its graduates have gone forth by thousands to take their places in all the professions and walks of life; the artificial power acquired by them there has been so much. capital; the influence of the institution has been felt in every department and throughout the Union. In view of these facts well might Chief Justice Richardson say in this cause as he did (1 N. H. 119): "These great purposes are surely, if anything can be, matters of public concern." Judge Marshall goes further. He says: "The particular interests of New Hampshire never entered into the mind of the donors, never constituted a motive for their donation. The propagation of the Christian religion among the savages, and the dissemination of useful knowledge among the youth of the country, were the avowed and sole objects of their contributions. In these New Hampshire would participate; but nothing particular or exclusive was intended for her. Even the site of the college was selected, not for the sake of New Hampshire, but because it was 'most subservient to the great ends in view,' and because liberal donations of land were offered by the proprietors on condition that the institution should be there established. The real advantages from the location of the college are, perhaps, not less con

siderable to those on the west than to those on the ea side of Connecticut river. The clause which constitutes t incorporation and expresses the objects for which it w made declares those objects to be the instruction of t Indians, and also of English youth and any others.' that the objects of the contributors and the incorporati act were the same-the promotion of Christianity and education generally; not the interests of New Hampshi particularly."

The college was located on the borders of two state on the banks of what was, to some extent, a natural hig way, and where, at the time of its location, it was suppose that the great artificial lines of travel would converge, an where it was hoped would be located the future capital o

a state.

The elevators were located at Chicago, which partially, i consequence of natural facilities, but to a far greater exten in consequence of artificial ones, has become a great focal point for the reception and transhipment of grain. The doors of these warehouses have been open for the transac tion of this business, in its present form, only about twenty years.

The college has received students and sent forth educated men with their diplomas; the warehouses have received grain and issued it under certificates of deposit. The college takes toll in the nature of pay for services rendered; so do the warehouses. If "avoirdupois " is to be the test, the warehouses have the advantage; if brain sweat is to be the test, the college leads.

The use in one case is public; how can any man say it is not so in the other? It seems to us that Chief Justice Waite but reëchoes the proposition of Lord Hardwicke, enforced by Sullivan in his argument. He says: "Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his prop erty to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to

* * *

be controlled by the public, for the common good, to the extent of the interest he has thus created." "But we need not go further. Enough has already been said to show that when private property is devoted to a public use it is subject to public regulation. It remains only to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this principle. For this purpose we accept, as true, the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error." The brief referred to summarized the magnitude of the warehouse business at Chicago.

These principles are far-reaching in their consequences. As applied to corporations, in the absence of a positive prohibition, the nature of the business or employment "as public," or as affecting public interests, enters into and permeates the charter, leavens the lump, and, in effect, transforms it into what, since Trustees v. Woodward, is commonly termed a public corporation. As we have already shown, the ablest courts and jurists have differed widely as to the extent of the power which legislative bodies may exercise over such corporations. We have before suggested what we regard as the true rule.

To carry out the principles laid down by them, it seems to us that the Supreme Court must hold that legislatures may, in general, authorize the taking of the private property of individuals (with compensation) for grain elevators, hackstands, baker's ovens, and whatever else the court may regard as "public" employments. The test of a public use seems to be what is beneficial to the public, or what legislative bodies may deem advantageous to many people. The constitution imposes a restraint upon the exercise of this power. What the real or constructive public may take in this way they must pay for.

But what is termed the power of "regulation" is far more important than that of eminent domain, and especially when applied to corporations.

Whenever the nature of the employment or business enters into a charter the power of regulation goes with it.

So far as the court has yet gone, the real or constructive public may not take the property itself without paying for it; but under the guise of "regulation" this public may take the beneficial use of it by paying a nominal price, such as the public, through its legislative bodies, see fit to say is reasonable.

The Supreme Court may, for the time being, hesitate and fluctuate as in the South Ottawa Bond cases, but these rules must govern until it, as it has already done in relation to admiralty jurisdiction, turns its eye to the pole-star of legal truth, and, in spite of adverse winds and baffling currents, sails out into deep water and ignores the pernicious principles supposed to have been established in Trustees v. Woodward.