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ion of the court, quoted the language of question whether a state statute infringes WAITE, C. J., in the Munn Case, and also the constitutional guaranty protecting life, the language of BRADLEY, J., in the Sinking liberty, and property, where it arises in a Fund Cases, 99 U. S. 747, declaring the prin- state court, involves the consideration of ciple decided in the Munn Case, and these both the federal and state constitutions, alquotations were quite irrelevant unless the though the ground of construction and dedoctrine stated therein was intended to be ap- cision would be identical under either instruproved. In People v. King the doctrine of ment. But whether the decision of the state the Munn Case was applied by this court to court presents a federal question reviewable uphold the validity of a statute which pro-on appeal to the supreme court of the United hibited the exclusion of any citizen from the States depends on the nature of the decision aters or other places of amusement, by rea- of the state court; that is to say, whether it son of race, color, or previous condition of affirmed the validity of the statute, or held it servitude, and a conviction in that case was to be unconstitutional and void. If the state sustained where the defendant, the propri- court derides that the statute does violate the etor of a skating-rink, erected on his own constitutional guaranty, its decision is now, property, opened it to the public, but ex- as before the fourteenth amendment, final cluded therefrom, on the occasion of a public and conclusive, and no appeal can be taken to entertainment, on the ground of race and the federal court, as in that case no right uncolor, a colored person who sought admission. der the constitution and laws of the United
The court is not concluded by these cases, States has been denied. If, on the other or any of them, from re-examining the prin- hand, the state court sustains the statute, ciple on which the decision in Munn v. Illi- and denies the right asserted, the federal junois proceeded; but we cannot overrule and risdiction attaches, and an appeal may be disregard that case without, as I think, sub- taken to the United States supreme court. verting the principle of our decision in the It cannot be maintained, we think, that a deKing Case, and certainly not without disre- «ision of the federal court sustaining a state garding many deliberate expressions of this statute is res aıljudicata and binding upon a · court in approval of the principle of that de- state court when the same question subsecision. It is an interesting question as to quently arises there under a similar statute. what consideration should be given by a state It would still be the duty of the state court court to a decision of the supreme court of to examine the question, and decide it acthe United States upon a question of consti. cording to its interpretation of the constitututional law, rendered in the exercise of its tional guaranty. But the respect due to the jurisdiction, where the point in judgment re- decision of that high tribunal, the fact that lates to the validity of a state statute, which to it has been cominitted, by the consent of is challenged on the ground that it deprives a the states, the ultimate vindication of liberty party of life, liberty, and property without and property against arbitrary and unconstidue process of law, and the decision affirms tutional legislation, and the fitness of things, the constitutionality of the statute. The ju- emphasize and enforce, in the particular case, risdiction of the supreme court of the United the settled rule that only when required by States to review the decision of a state court, the most cogent reasons, nor, indeed, unless sustaining a state statute which is alleged to compelled by unanswerable grounds, will a be a violation of this constitutional principle, court declare a statute to be unconstitutional. originated with the adoption of the four- “On more than one occasion,” said Chief Justeenth amendment of the constitution of the tice MARSHALL in the Dartmouth College United States, which for the first time intro- Case, 4 Wheat. 625, “this court has expressed duced into the federal constitution the pro- the cautious circumspection with which it hibition, “nor shall any state deprive any approaches the consideration of such quesperson of life, liberty, or property without tions, and has declared that in no doubtful due process of law.” This was a new limit-case would it pronounce a legislative act to ation in the federal constitution on the state be contrary to the constitution.” governments. Prior to the adoption of the The power of the legislature to regulate fourteenth amendment, personal rights and and charge for elevating grain, where the rights of property were, as a rule, exclusively business is carried on by individuals upon matters of state cognizance, and the state their own premises, depends upon the quescourts were the ultimate tribunals for the de- tion whether the regulation falls within the termination of questions arising under the scope of what is called the “police power, constitutional guaranty of life, liberty, and which is but another name for that authority property, which was to be found only in the which resides in every sovereignty to pass all state constitutions. Their decisions were laws, for the internal regulation and govern. not subject to review in the courts of the ment of the state, necessary for the public United States. Slaughter-House Cases, 16 welfare. The existence of this power is uniWall. 36. There were exceptions growing versally recognized. All property, all busiout of article 1, § 10, of the federal constitu-ness, every private interest, may be affected tion, that “no state should pass any bill of by it, and be brought within its influence. attainder, ex post facto law, or law impair- Under this power the legislature regulates ing the obligation of contracts,” not material the uses of property, prescribes rules of perhere. Since the fourteenth amendment the sonal conduct, and in numberless ways, through its pervading and ever-present au- 1 stated by Lord Hale in his treatise De Portithority, supervises and controls the affairs of bus Maris, (1 Harg. Law Tracts, 78,) that men in their relations to each other and to when private property is “affected by a pubthe community at large, to secure the mutual lic interest it ceases to be juris privati only.” and equal rights of all, and promote the inter- The principle of the decision is stated with ests of society. It has limitations; it cannot great perspicuity by BRADLEY, J., in his be arbitrarily exercised so as to deprive the opinion in the Sinking Fund Cases, supra. citizen of his liberty and property. But a He says: “The inquiry there was as to the statute does not work such a deprivation, in extent of the police power in cases where the the constitutional sense, simply because it im- public interest is affected; and we held that, poses burdens or abridges freedom of action, when an employment or business becomes a or regulates occupations, or subjects individ- matter of such public interest and importance uals or property to restraints in matters in- as to create a common charge or burden upon different, except as they affect public inter- the citizen,--in other words, when it becomes ests or the rights of others. Legislation un- a practical monopoly, to which the citizen is der the police power infringes the constitu- compelled to resort, and by means of which a tional guaranty only when it is extended to tribute can be exacted from the community,subjects not within its scope and purview, as it is subject to regulation by the legislative that power was defined and understood when power.” The elevators in Chicago had no legal the constitution was a lopted. The general- monopoly in the business of elevating grain. ity of the terms employed by jurists and pub- The business was open to all comers, but the licists in defining this power, while they show location of the elevators, their connection with its breadth and the universality of its pres- the railroads, on which most of the grain from ence, nevertheless leave its boundaries and the grain-producing states and territories of limitations indefinite, and impose upon the the west and north-west was brought to Chicourt the necessity and duty, as each case is cago, the necessity of using them in the transpresented, to determine whether the particu- fer, storing, and transshipment of grain, crelar statute falls within or outside of its ap- ated, as was held by the court, a virtual and propriate limits. “It is much easier,” saiii practical monopoly, which affected the busiChief Justice SHAW in Com. v. Alger, 7 Cush. ness of the property with a public interest, and 53, “to perceive and realize the existence of subjected them to regulation by law. The this power than to mark its boundaries or to application of the language of Lord Hale, and prescribe limits to its exercise.”
of the principle that private property may by In determining whether the legislature can its uses cease to be juris privati strictly, and lawfully regulate and fix the charge for ele- become affected by a public interest, to the vating grain by private elevators, it must be business of elevating grain in Chicago, was conceded that the uses to which a man may combatted and denied by FIELD, J., in his devote his property, the price which he may very able and forcible dissenting opinion in charge for such use, how much he shall de- Munn v. Illinois. “It is,” he declared, “only mand or receive for his labor, and the meth- where some privilege in the bestowal of the ods of conducting his business, are, as a gen-government is enjoyed in connection with eral rule, not the subject of legislative reg1- (private] property that it is affected with a lation. These are a part of our liberty, of public interest in any proper sense of the which, under the constitutional guaranty, we terms. It is the public privilege conferred cannot be deprived. We have no hesitation with the use of the property which creates in declaring that unless there are special con- the public interest in it.” There can be no ditions and circumstances which bring the doubt that where the government confers a business of elevating grain within principles special privilege upon a citizen, not of comwhich, by the common laws and the practice mon right, it may annex such conditions upon of free governments, justify legislative con- its enjoyment as it sees fit. Nor can there trol and regulation in the particular case, the be any question that where an in lividual has statute of 1888 cannot be sustained. That a legal monopoly to use his property for'a no general power resides in the legislature to public purpose, and the public have an interregulate private business, prescribe the con- est in the use, he is subject to an obligation ditions under which it shall be conducted, fix cast upon him by the common law to demand the price of commodities or services, or inter-only a reasonable compensation for the use. fere with freedom of contract, we cannot This is stated with great clearness by Lord doubt. The merchant and manufacturer, the ELLENBOROUGH in Allnutt v. Inglis, 12 East, artisan and laborer, under our system of gov- 538. ““There is,” he said, “no doubt that ernment, are left to pursue and provide for the general principle is favored, both in law their own interests in their own way, un- and justice, that every man may fix what trammeled by burdensome and restrictive price he pleases upon his own property, or the regulations which, however common in rude use of it; but if, for a particular purpose, the and irregular times, are inconsistent with public have a right to resort to his premises, constitutional liberty. The justification of and make use of them, and he have a monopthe statute of Illinois regulating the charge oly in them for that purpose, if he will take for elevating and storing grain in the eleva- the benefit of that monopoly he must, as an tors of that state was placed in the Munn equivalent, perform the duty attached to it Case upon that principle of the common law 'on reasonable terms."
But the question is whether the power of persons that come to that port must come to the legislature to regulate charges for the use unload their goods, as for the purpose, beof property, and the rendition of services cause they are the wharves only licensed by connected with it, depend in every case upon the queen, according to the statute of 1 Eliz. the circumstance that the owner of the prop-c. 11, or because there is no other wharf in erty has a legal monopoly or privilege to use that port, as it may fall out when a port is the property for the particular purpose, or newly erected, in that case there cannot be has some special protection from the govern- taken arbitrary and excessive duties for cranment, or some peculiar benefit in the prose- age, wharfage, passage, etc. Neither can cution of his business. Lord Hale, in the they be enhanced to an immoderate degree, treatises De Portibus Maris and De Jure but the duties must be reasonable and moderMaris, so largely quoted from in the opinions ate, though settled by the king's license or in the Munn Case, used the language that charter.” when private property is “affected with a The contention that the right to regulate public interest it ceases to be juris privati the charges of ferrymen or wharfingers was only,” in assigning the reason why ferries founded on the fact that tolls could not be takand public wharves should be under public en without the king's license does not seem regulation, and only reasonable tolls charged. to us to be sound. It rested on the broader The right to establish a ferry was a franchise, basis of public interest, and the license was and no man could set up a ferry, although he the method by which persons exercising these owned the soil and landing places on both functions were subjected to governmental susides of the stream, without a charter from pervision. The king, in whom the franchise the king or a prescription, time out of mind. of wharfage was vested as a royal prerogaThe franchise to establish ferries was a royal tive, was himself, as has been shown, subprerogative, and the grant of the king was ject to the same rule as the subject, and necessary to authorize a subject to establish could only exact reasonable wharfage, nor a public ferry, even on his own premises. could he by express license authorize the takWhen we recur to the origin and purpose of ing of more. The language of Lord Hale, this prerogative, it will be seen that it was that private property may be affecteil by a vested in the king as a means by which a public interest, cannot justly, we think, be business in which the whole community restricted as meaning only property clothed were interested could be regulated. In with a public character by special grant or other words, it was simply one mode of ex-charter of the sovereign. The control which ercising a prerogative of government—that is by common law and by statute is exercised to say, through the sovereign instead of over common carriers is conclusive upon the through parliament—in a matter of public point that the right of the legislature to reg
This and similar prerogatives were ulate the charges for services in connection vested in the king for public purposes, and with the use of property does not in every not for his private advantage or emolument. case depend upon the question of legal moLord KENYON in Rorke v. Dayrell, 4 Term nopoly. From the earliest period of the comR. 410, said: “The prerogatives [of the mon law it has been held that common carcrown] are not given for the personal ad- riers were bound to carry for a reasonable vantage of the king, but they are allowed to compensation. They were not at liberty to exist because they are beneficial to the sub-charge whatever sum they pleased, and, even ject;" and it is said in Chitty on Prerogatives, where the price of carriage was fixed by the (page 4:) “The splendor, rights, and power contract or convention of the parties, the of the crown were attached to it for the bene- contract was not enforceable beyond the point fit of the people, and not for the private of reasonable compensation. From time to gratification of the subject.” And Lord time statutes have been enacted in England Hale, in one of the passages referred to, in and in this country fixing the sum which stating the reason why a man may not set up should be charged by carriers for the transa.ferry without a charter from the king, says: portation of passengers and property, and “Because it doth in consequence tend to a the validity of such legislation bas not been common charge, and is become a thing of questioned. But the business of common carpublic interest and use, and every man for riers until recent times was conducted alhis passage pays a toll which is a common most exclusively by individuals for private charge, and every ferry ought to be under a emolument, and was open to every one who public regulation.” The right to take tolls chose to engage in it. The state conferred for wharfage in a public port was also a no franchise, and extended to common carrifranchise, and tolls, as Lord Hale says, coulders no benefit or protection, except that gennot be taken without lawful title by charter eral protection which the law affords to all or prescription. De Port. Mar. 77. But persons and property within its jurisdiction. the king, if he maintained a public wharf, | The extraordinary obligations imposed upon was under the same obligation as a subject to carriers, and the subjection of the business to exact only reasonable tolls, nor could the public regulation, were based on the characking authorize unreasonable tolls to be taken ter of the business; or, in the language of Sir by a subject. The language of Lord Hale is William Jones, upon the consideration “that explicit upon both these points: “If the king the calling is a public employment.” Jones, or subject have a public wharf into which all Bailm. App. It is only a public employment in the sense of the language of Lord Hale, sits action, that a natural person has. Its that it was "affected with a public interest,” property is secured to it by the same constiand the imposition of the character of a pub- tutional guaranties, and in the management lic business upon the business of a common of its property and business is subject to regcarrier was made because public policy was ulation by the legislature to the same extent. deemed to require that it should be under only as natural persons, except as the power public regulation. The principle of the com- may be extended by its charter. The mere mon law, that common carriers must serve fact of a corporate character does not extend the public for a reasonable compensation, be- the power of legislative regulation. For came a part of the law of this state, and from illustration, it could not justly be contended the adoption of the constitution has been that the act of 1888 would be a valid exercise part of our municipal law. It is competent of legislative power as to corporations organfor the legislature to change the rule of rea- ized for the purpose of elevating grain, alsonable compensation, as the matter was left though invalid as to private persons conductby the common law, and prescribe a fixed ing the same business. The conceded power and definite compensation for the services of legislation over common carriers is adverse of common carriers. This principle was de- to the claim that the police power does not clared in the Munn Case, which was cited in any case include the power to fix the price with approval on this point in Sawyer v. of the use of private property, and of services Davis, 136 Mass. 239. It accords with the connected with such use, unless there is a language of Chief Justice Shaw in Com. v. legal monopoly, or special governmental Alger, supra: “Wherever there is a general privileges or protection have been bestowed. right on the part of the public, and a general It is said that the control which the legisladuty on the part of a land-owner or any oth- ture is permitted to exercise over the busier person to respect such right, we think itness of common carriers is a survival of that is competent for the legislature, by a specific class of legislation which in former times exenactment, to prescribe a precise, practical tended to the details of personal conduct, and rule for decl ring, establishing, and secur- assumed to regulate the private affairs and ing such right, and enforcing respect for it.” business of men in the minutest particulars. The practice of the legislature in this and This is true. But it has survived because it other states to prescribe a maximum rate for was entitled to survive. By reason of the the transportation of persons or property on changed conditions of society, and a truer railroads is justified upon this principle. appreciation of the proper functions of govWhere the right of the legislature to regu- ernment, many things have fallen out of the late the fares or charges on railroads is re- range of the police power as formerly recogceived by the charter of incorporation, or the nized, the regulation of which by legislation charter was granted subject to the general would now be regarded as invading personal right of alteration or repeal by the legisla- liberty. But society could not safely surture, the power of the legislature in such cases render the power to regulate by law the busto prescribe the rate of compensation is a iness of common carriers. Its value has been part of the contract, and the exercise of the infinitely increased by the conditions of modpower does not depend upon any general leg- ern commerce, under which the carrying islative authority to regulate the charges of trade of the country is, to a great extent, abcommon carriers. But the cases are uni- sorbed by corporations, and, as a check upon form that where there is no reservation in the greed of these consolidated interests, the the charter the legislature may nevertheless legislative power of regulation is demanded interfere, and prescribe or limit the charges by the most imperative public interests. The of railroad corporations. The Granger Cases, same principle upon which the control of supra; Dow v. Beidelman, 125 U. S. 680, 8 common carriers rests has enabled the state Sup. Ct. Rep. 1028; EARL, J., in People v. to regulate in the public interest the charges Railroad Co., supra; RUGER, C. J., in Rail- of telephone and telegraph companies, and road Co. v. Railroad Co., supra.
to make the telephone and telegraph, those The power of regulation in these cases important agencies of commerce, subservient does not turn upon the fact that the entities to the wants and necessities of society. affected by the legislation are corporations These regulations in no way interfere with a deriving their existence from the state, but rational liberty,--liberty regulated by law. upon the fact that the corporations are com- There are elements of publicity in the busmon carriers, and therefore subject to legis- iness of elevating grain which peculiarly aflative control. The state, in constituting a fect it with a public interest. They are corporation, may prescribe or limit its pow- found in the nature and extent of the busiers, and reserve such control as it sees fit, ness, its relation to the commerce of the state and the body accepting the charter takes it and country, and the practical monopoly ensubject to such limitations and reservations, joyed by those engaged in it. The extent of and is bound by them. The considerations the business is shown by the facts to which upon which a corporation holds its franchise we have referred. A large proportion of the are the duties and obligations imposed by the surplus cereals of the country passes through act of incorporation. But when a corpora- the elevators at Buffalo, and finds its way tion is created it has the same rights and the through the Erie canal and Hudson river to same duties, within the scope marked out for the seaboard at New York, from whence they are distributed to the markets of the world. Your canals is a matter of public concern, and The business of elevating grain is an incident in which the public have a deep interest, does to the business of transportation. The ele- not admit of doubt. It is a familiar maxim vators are indispensable instrumentalities in that competition is the life of trade. It folthe business of the common carrier. It is lows that whatever destroys, or even relaxes, scarcely too much to say that, in a broad competition in trade is injurious, if not fatal, sense, the elevators perform the work of car- to it.” The same question came up a second riers. They are located upon or adjacent to time in Stanton v. Allen, 5 Denio, 434, and the waters of the state, and transfer from the was decided the same way. In the course of lake vessels to the canal-boats, or from the its opinion the court said: “As these canals canal-boats to the ocean vessels, the cargo of are the property of the state, constructed at grain, and thereby perform an essential serv- great expense, as facilities to trade and comice in transportation. It is by means of the merce, and to foster and encourage agricultelevators that transportation of grain by ure, and are, at the same time, a munificent water from the upper lakes to the seaboard is source of revenue, whatever concerns their emrendered possible. It needs no argument to ployment and usefulness deeply involves the show that the business of elevating grain has interests of the whole state.” The fostering a vital relation to commerce in one of its most and protection of commerce was, even in animportant aspects. Every excessive charge cient times, a favorite object of English law, made in the course of the transportation of (Chit. Prerog. 162;) and this author states that grain is a tax on commerce, and the public the “superintendence and care of commerce, have a deep interest that no exorbitant charges on the success of which so materially depends shall be exacted at any point upon the busi- the wealth and prosperity of the nation, are ness of transportation. The state of New York, in various cases allotted to the king by the in the construction of the Erie canal, exhibited constitution,” and many governmental powits profound appreciation of the publicinterest ers vested in the sovereign in England have involved in the encouragement of commerce. since our Revolution devolved on the legislaThe legislature of the state, in entering upon tures of the states. The statutes of England the work of constructing a water-way be- in earlier time were full of oppressive comtween Lake Erie and the Atlantic ocean, sets mercial regulations, now, happily, to a great forth in the preamble of the originating act extent abrogated; but that the interests of of 1817 its reasons for that great undertak-commerce are matters of public concern all ing. “It will," the preamble says, “ promote states and governments have fully recogagriculture, manufactures, and commerce, nized. mitigate the calamities of war, and enhance The third element of publicity which tends the blessings of peace, consolidate the Union, to distinguislı the business of elevating grain and advance the prosperity and elevate the from general commercial pursuits is the character of the United States.' In the con- practical monopoly which is or may be construction and enlargement of the canal the nected with its prosecution. In the city of state has expended vast sums of money, raised | Buffalo the elevators are located at the juncby taxation; and finally, to still further pro- tion of the canal with Lake Erie. The ownmote the interests of commerce, it has made ers of grain are compelled to use them in the canal a free highway, and maintains it transferring cargoes. The area upon which by a direct tax upon the people of the state. it is practicable to erect them is limited. The The wise forecast and statesmanship of the structures are expensive, and the circumprojectors of this work have been amply stances afford great facility for combination demonstrated by experience. It has largely among the owners of elevators to fix and contributed to the power and influence of the maintain an exorbitant tariff of charges, state, promoted the prosperity of the people, and to bring into the combination any new and to it, more perhaps than to any other elevator which may be erected, and employ single cause, is it owing that the city of New it or leave it unemployed, but in either case York has become the commercial center of permit it to share in the aggregate earnings. the Union. Whatever impairs the usefulness It is evident that if such a combination in of the canal as a highway of commerce in- fact exists the principle of free competition volves the public interest. The people of in trade is excluded. The precise object of New York are greatly interested to prevent the combination would be to prevent compeany undue exactions in the business of trans- tition. The result of such a combination portation which shall enhance the cost of the would necessarily be to subject the lake vesnecessaries of life, or force the trade in grain sels and canal-boats to any exaction which the into channels outside of our state. In Hooker elevator owners might see fit to impose for v. Vandewater, 4 Denio, 349, the court was the service of the elevator, and the elevator called upon to consider the validity of an owners would be able to levy a tribute on agreement between certain transportation the community, the extent of which would lines on the canal to keep up the price of be limited only by their discretion. freights. The court held the agreement to It is upon these various circumstances that be illegal, and JEWETT, J., in pronouncing the court is called upon to determine whether the judgment of the court, said: “That the the legislature may interfere and regulate the raising of the price of freights for the trans- charges of elevators. It is purely a question portation of merchandise or passengers upon of legislative power. If the power to legis