Argument for Plaintiffs in Error.

To have a ferry is a franchise, and the governmental control is based on the fact that the right to use a boat for ferriage must come by state grant, which prescribes the conditions of the use. Sir Matthew Hale, De Portibus Maris, quoted by Chief Justice Waite, p. 126; Mayor v. Starin, 106 N. Y. 1; Mills v. St. Clair County Commissioner, 4 Illinois (3 Scammon), 53; Trustees &c. v. Tatman, 13 Illinois, 27.

That private wharves are the rule and public wharves the exception, may be proved from C. J. Waite's quotation from Sir Matthew Hale's text, De Portibus Maris. Munn v. Illinois, 94 U. S. 127. In New York, the Brooklyn wharves are private. Wetmore v. Brooklyn Gas Co., 42 N. Y. 384; Woodruff v. Havemeyer, 106 N. Y. 129. And it is doubtful if warehouses are public in that State. In re Eureka Warehouse Co., 96 N. Y. 42.

In mediæval times common carriers and common farriers were alike bound to practise their art on demand, and show skill in it. Jackson v. Rogers, 2 Shower, 332. The distinction between public and private carriers was known of old. Hutton v. Osborne, cited in Selwyn's Nisi Prius, 401. This distinction is still preserved in the law. Allen v. Sackrider, 37 N. Y. 341; Fish v. Clark, 49 N. Y. 122.

There was always, then, in every case where a wharf, or a warehouse, or an inn, or a carrier was alleged to be public or common, a question of fact to be determined, viz. Had the individual done the acts or had his property the antecedents and concomitants which give the public rights to his services and the use of his property? We affirm that this right to have it established in court by evidence that the individual is in the public service is a property right and is guaranteed by the Constitution of the United States.

The opinion of the Chief Justice in Munn v. Illinois, disposes of this element in the authorities by adjudging that it is a question for the legislature, and presuming in favor of the law that the legislature has decided that all who are within the terms of the law were at its date in a common or public employment, and fit subjects for regulation of prices. The law of New York here in question attempts to regulate

Argument for Plaintiffs in Error.

all elevators in cities of over 130,000 population, viz.: New York, Brooklyn and Buffalo. It in effect declares that all elevators in these cities are and shall be public elevators. We contend that no state of circumstances can exist to justify this statute, and, within the doctrine of all the cases, we ask that it be declared void. It is impossible to justify this law by the precedents relied upon in the Munn Case. The elements of publicity are in almost every case wholly within individual control.

There has not been and there cannot be in New York any such situation as existed in Chicago. No man and no set of men in New York can fix a rate of toll and thus tax commerce. There will always be in the port of New York a genuine competition. Our floating elevator is radically different from Munn's warehouse in itself and in its surroundings.

V. This law is unconstitutional and void because it decides that Annan's elevator is not private, and therefore free from legislative control without due process of law. It governs and regulates all elevators in cities having 130,000 population, and the Supreme Court, construing the law, held that no evidence before the magistrate could be considered. The Court of Appeals of New York in its opinion, (117 N. Y. 621,) said: "We are of opinion that the statute of 1888 is constitutional as a whole, and although it may comprehend cases which, standing alone, might not justify legislative interference, yet they must be governed by the general rule enacted by the legislature."

We take issue at this point: Ours is, we contend, a case comprehended by the statute, yet not justifying legislative interference, and we submit as the true rule that if one single case falls within the statute whose antecedents and concomitants do not justify legislative coercion, the law is void. The People v. Marx, 99 N. Y. 377; Morgan v. King, 35 N. Y. 454; S. C. 91 Am. Dec. 58; In the Matter of Jacobs, 98 N. Y. 98; Ervine's Appeal, 16 Penn. St. 266; S. C. 55 Am. Dec. 499; Hurtado v. California, 110 U. S. 516.

VI. This law violates the Constitution of the United States in that it refuses to and takes from elevator owners the equal protection of the laws.

!

Opinion of the Court.

By this act owners of elevators in cities of less than 130,000 inhabitants are left free to make their own bargains, while in cities of over 130,000 population they are constrained to take the statutory rate.

Yonkers is a city of less than 130,000 inhabitants and so is Long Island City. The former adjoins New York City and the latter is separated from it only by the East River, and only a narrow creek - perhaps two hundred feet wide — separates Brooklyn and Long Island City. In Yonkers or Long Island City or in Albany or Rochester an elevator owner is free, while in Brooklyn, Buffalo and New York they are deprived of their freedom. Such a law deprives elevator owners in the larger cities of the equal protection of the laws. The Railroad Tax Cases, 13 Fed. Rep. 722; Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394; Barbier v. Connolly, 113 U. S. 27; Hayes v. Missouri, 120 U. S. 68.

Mr. Spencer Clinton for Budd, plaintiff in error.

Mr. J. A. Hyland for the defendants in error in 644 and 645.

Mr. George T. Quinby filed a brief for the defendants in error in 719.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

The main question involved in these cases is whether this court will adhere to its decision in Munn v. Illinois, 94 U. S. 113.

The Court of Appeals of New York, in People v. Budd, 117 N. Y. 1, held that chapter 581 of the laws of 1888 did not violate the constitutional guarantee protecting private property, but was a legitimate exercise of the police power of the State over a business affected with a public interest. In regard to the indictment against Budd, it held that the charge of exacting more than the statute rate for elevating was proved, and that as to the alleged overcharge for shovelling, it

Opinion of the Court.

appeared that the carrier was compelled to pay $4 for each 1000 bushels of grain, which was the charge of the shovellers' union, by which the work was performed, and that the union paid the elevator, for the use of the latter's steam shovel, $1.75 for each 1000 bushels. The court held that there was no error in submitting to the jury the question as to the overcharge for shovelling; that the intention of the statute was to confine the charge to the "actual cost" of the outside labor required; and that a violation of the act in that particular was proved; but that, as the verdict and sentence were justified by proof of the overcharge for elevating, even if the alleged overcharge for shovelling was not made out, the ruling of the Superior Court of Buffalo could not have prejudiced Budd. Of course, this court, in these cases, can consider only the Federal questions involved.

It is claimed, on behalf of Budd, that the statute of the State of New York is unconstitutional, because contrary to the provisions of section 1 of the Fourteenth Amendment to the Constitution of the United States, in depriving the citizen of his property without due process of law; that it is unconstitutional in fixing the maximum charge for elevating, receiving, weighing and discharging grain by means of floating and stationary elevators and warehouses at five-eighths of one cent a bushel and in forbidding the citizen to make any profit upon the use of his property or labor; and that the police power of the State extends only to property or business which is devoted by its owner to the public, by a grant to the public of the right to demand its use. It is claimed on behalf of Annan and Pinto that floating and stationary elevators in the port of New York are private property, not affected with any public interest, and not subject to the regulation of rates.

"Trimming" in the canal-boat, spoken of in the statute, is shovelling the grain from one place to another, and is done by longshoremen with scoops or shovels; and "trimming" the ship's cargo when loading is stowing it and securing it for the voyage. Floating elevators are primarily boats. Some are scows, and have to be towed from place to place by steam tugs; but the majority are propellers. When the floating elevator

VOL. CXLIII-34

Opinion of the Court.

arrives at the ship and makes fast alongside of her, the canalboat carrying the grain is made fast on the other side of the elevator. A long wooden tube, called "the leg of the elevator," and spoken of in the statute, is lowered from the tower of the elevator so that its lower end enters the hold of the canal-boat in the midst of the grain. The "spout" of the elevator is lowered into the ship's hold. The machinery of the elevator is then set in motion, the grain is elevated out of the canal-boat, received and weighed in the elevator, and discharged into the ship. The grain is lifted in "buckets" fastened to an endless belt which moves up and down in the leg of the elevator. The lower end of the leg is buried in the grain so that the buckets are submerged in it. As the belt moves, each bucket goes up full of grain, and at the upper end of the leg, in the elevator tower, empties its contents into the hopper which receives the grain. The operation would cease unless the grain was trimmed or shovelled to the leg as fast as it is carried up by the buckets. There is a gang of longshoremen who shovel the grain from all parts of the hold of the canal-boat to "the leg of the elevator," so that the buckets may be always covered with grain at the lower end of the leg. This "trimming or shovelling to the leg of the elevator," when the canal-boat is unloading, is that part of the work which the elevator owner is required to do at the "actual cost."

In the Budd and Pinto cases, the elevator was a stationary one on land; and in the Annan case, it was a floating elevator. In the Budd case, the Court of Appeals held that the words "actual cost," used in the statute, were intended to exclude any charge by the elevator beyond the sum specified, for the use of its machinery in shovelling, 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; and that the purpose of the statute could be easily evaded and defeated if the elevator owner were permitted to separate the services, and charge for the use of the steam shovel any sum which might be agreed upon between him and the shovellers' union, and thereby, under color of charging for the use of his steam shovel, exact from the