it possible, the interest to trade and commerce, the relation of the business to the prosperity and welfare of the state, and the practice of legislation in analogous cases. These circumstances collectively create an exceptional case, and justify legislative regulation. late exists, the court has nothing to do with | on the lenders of money. It was a regulathe policy or wisdom of the interference in tion springing from a supposed public inthe particular case, or with the question of terest, and was peculiarly oppressive on a certhe adequacy or inadequacy of the compen-tain class. A law prohibiting the taking of sation authorized. "This court," said CHASE, interest on the use of money would now be C. J., in the License Tax Cases, 5 Wall. 469, deemed a violation of a right of property. "can know nothing of public policy, except But the material point is that the prohibition, from the constitution and the laws, and the as well as the regulation, of interest, was course of administration and decision. It based upon public policy, and the present has no legislative powers. It cannot amend conceded right of regulation does not have or modify any legislative acts. It cannot ex-its foundation in any grant or privilege conamine questions as expedient or inexpedient, ferred by the sovereign. The attempts made as politic or impolitic. Considerations of to place the right of public regulation in that sort must, in general, be addressed to the these cases upon the ground of special privlegislature. Questions of policy determined ilege conferred by the public on those affected there are concluded here." Can it be said, cannot, we think, be supported. The underin view of the exceptional circumstances, lying principle is that business of certain that the business of elevating grain is not kinds holds such a peculiar relation to the "affected with a public interest," within the public interests that there is superinduced language of Lord Hale, or that the case does upon it the right of public regulation. We not fall within the principle which permits rest the power of the legislature to control the legislature to regulate the business of and regulate elevator charges on the nature common carriers, ferrymen, innkeepers, hack-and extent of the business, the existence of a men, and the interest on the use of money? virtual monopoly, the benefit derived from It seems to us that speculative, if not fanc- the canal, creating the business and making iful, 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, The case of Munn v. Illinois has been freand therefore the business is subject to reg-quently cited with approval by courts in other ulation; that the right to regulate wharfage states. Nash v. Page, 80 Ky. 539; Hockett v. rested upon the permission of the sovereign State, 105 Ind. 250, 5 N. E. Rep. 178; Teleto extend wharves into the beds of navigable phone Co. v. Telegraph Co., 66 Md. 399, 7 Atl. streams, the title to which was in the sover- Rep. 809; Davis v. State, 68 Ala. 58. In Nash eign; that the right to regulate the interest v. Page it was held, upon the doctrine of the on the use of money sprung from the fact Munn Case, that warehousemen, for the public that taking interest was originally illegal at sale and purchase of tobacco in Louisville, excommon law, and that where the right was ercised a public business, and assumed obligagranted by statute it was taken subject to tions to serve the entire public, and could not regulation by law. The plain reason we exclude persons from buying or selling tothink why the charges of hackmen and ferry-bacco in their warehouses who were not memmen were made subject to public regulation bers of the board of trade. In Hockett v. is that they were common carriers. The rea- State it was held that the relations which son assigned for the right to regulate wharf- telephone companies have assumed towards age in England overlooks the fact that the the public imposed public obligations, and title to the beds of navigable streams was fre- that all the instruments and appliances used quently vested in a subject, and was his pri- by telephone companies in the prosecution of vate property, subject to certain public the business were, in legal contemplation, rights, as the right of navigation, and no devoted to public use. In Telegraph Co. v. distinction as to the power of public regula- Telephone Co. legislation prohibiting distion is suggested in the ancient books be- crimination in the business of telegraphing tween wharves built upon the beds of navi- was upheld on the doctrine of the Munn gable waters, the title to which was in the Case. The criticism to which the Munn Case sovereign, and wharves erected upon navi- has been subjected has proceeded mainly on gable streams, the beds of which belonged to a limited and strict construction and defia subject. The obligation of the owner of nition of the police power. The ordinary the only wharf in a newly-erected port to subjects upon which it operates are well charge only reasonable wharfage is placed by understood. It is most frequently exerted Lord Hale on the ground of a virtual, as dis- in the maintenance of public order, the protinguished from a legal, monopoly. The rea-tection of the public health and public morson assigned for the right to regulate inter-als, and in regulating mutual rights of propest takes no account of the fact that the pro- erty, and the use of property, so as to prehibition by the ancient common law to take vent uses by one of his property to the ininterest at all was a regulation, and this man-jury of the property of another. These are ifestly did not rest upon any benefit conferred instances of its exercise, but they do not We sented by this case. The division of opinion RUGER, C. J., and EARL, DANFORTH, and FINCH, JJ., concur. GRAY, J., (dissenting.) I am unable to assent to the views expressed in the opinion for the court in this case. Judge PECKHAM has thoroughly examined and considered the question in People v. Walsh, post, 682, 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. bound the sphere of its operation. In the it is an efficient remedy if, at the bottom, the King Case, 110 N. Y. 418, 18 N. E. Rep. 245, legislation under it is oppressive and unjust. it was given a much broader scope, and was The remedy by taking away the power of the held to be efficient to prevent discrimination legislature to act at will would, indeed, be on the ground of race and color in places radical and complete. But the moment the opened for public entertainment. In that police power is destroyed or curbed by fixed case the owner of the skating-rink derived no and rigid rules a danger is introduced into special privilege or protection from the our system which would, we think, be far state. The public held no right, in any legal greater than results from an occasional desense, to resort to his premises. His per-parture by the legislature from correct princimission, except for the public interest in- ples of government. We here conclude our volved, was revocable as to the whole com- examination of the important question premunity or any individual citizen. But it was held that so long as he devoted his place to purposes of public entertainment he subjected it to public regulations. 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 govern- This legislation is sought to be upheld as ment wisely interposed the judicial power, constitutional, upon the ground that it is and invested it with the prerogative of bring- within a proper exercise of the sovereign ing every legislative act to the test of the power to prescribe regulations, when demandconstitution. But no serious invasion of ed by the general welfare, for the common constitutional guaranties by the legislature protection of all. It is said to fall within the can for a long time withstand the searching scope of the police power of the state. If influence of public opinion, which sooner or this is true of this measure, then I fail to see later is sure to come to the side of law and where are the limits within which the exerorder and justice, however much for a time cise of that power can be confined. This act it may have been swayed by passion or undertakes to regulate the prices which can prejudice, or whatever aberration may have be charged by an individual in the prosecumarked its course. So, also, in that wide tion of his private business. Its provisions range of legislative powers over persons and are attempted to be justified in this case beproperty which lie outside of the prohibitions cause, it is said, the business in question is a of the constitution, and which inhere of ne- virtual monopoly; owes its profitable existcessity in the very idea of government, by ence to the benefit conferred by the Erie which persons and property may be affected canal; and the interests of trade and comwithout transgressing constitutional guaran-merce and the welfare of the state demand ties, there is a restraining and corrective that its charges should be regulated by the power in public opinion which is a safeguard of tremendous force against unwise and impolitic legislation, hampering individual enterprise, and checking the healthful stimulus of self-interest, which are the life-blood of commercial progress. The police power may be used for illegitimate ends, although no court can say that the fundamental law has been violated. There is a remedy at the polls, and sovereign power. This 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 guaranty to each individual that he shall not be deprived of his life or liberty or property with of another, who resorts to him because of his superior business skill or facilities? How does the magnitude or the publicity of an individual's business furnish a valid reason for legislative interference? Every business is in a measure public, and is dependent upon public patronage for its maintenance and success. It is not compulsory upon the public to resort to these elevators, nor is the business exclusive, or beyond competition. There is a very wide distinction between those cases which are referred to in the books, and which Lord ELLENBOROUGH speaks of, (12 East, 539,) where the public have a right to resort to the premises of the individual, and to make use of them, and that individual has a monopoly in them for that purpose, and the case of an individual prosecuting his own business, upon his own premises, by no leave, privilege, or franchise of the sovereign power. Here it is a matter of option, or rather of agreement, with the owner whether his premises may be resorted to and his property used by other persons. The public have no independent legal right to make use of them. out due process of law. The learned judge the price which one individual may demand writing the opinion concedes 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 methods of conducting his business, are, as a general rule, not the subjects of legislative regulation. He well says that "these are a part of our liberty, of which, under the constitutional guaranty, we cannot be deprived." He believes, however, that he finds in this particular business of elevating grain "special conditions and circumstances" which justify legislative control. In my view, the concession which the learned judge is obliged to make with respect to our constitutional liberties impairs the force and effect of his opinion, unless he is able to show that the business in question is affected with a public use or interest within the strict and proper meaning of the term. This I do not see that he accomplishes. The circumstances amount to nothing more than that the transshipment of grain from and to barges, vessels, and cars is more expeditiously and advantageously done through the use of grain elevators than in any other way, and those persons who are interested in the ship-dividual are directly attacked by this legislament of grain must, for the better promotion of their private interests, have resort to them. It may be admitted that the use of the grain elevator is necessary to the grain-shipper for the profitable or successful transaction of his business. But do such facts invest the grainelevating business which the individual car-text is considered a justification? Of what ries on with such a public character as to use are our vaunted constitutional guaranties, give the public the right to regulate the if we may be deprived of property rights on charges which the owner may make? If the so flimsy a pretext? It is said that the remquestion affected a corporation, deriving its edy for such oppressive and unjust legislafranchises and powers from the state, a dif- tion is to be found at the polls. I do not ferent case would be presented. But here think that to be the only resort of the citizen. we have the case of an individual conduct-The constitutional guaranties were provided ing his private business in a legitimate man- for and are enforceable by him for his proner, and owing nothing to the state for priv-tection. I cannot believe that the theory or ileges or powers, or assistance conferred. the frame of our form of government inHe exercises the right, common to all, of engaging in a legitimate business for his own profit and gain. I believe the constitutional rights of the in tion. Under the pretense that his business has, by its magnitude and situation, become invested with a public interest, it is claimed to be brought within the right of the government to regulate. Where is the limit to the exercise of sovereign power, if such a pre volved the idea that so great a power should bé lodged in the legislature. If the door is opened to this species of legislation, what I understand it to be the general rule that protection have we against socialistic laws? the individual has absolute liberty to pursue What is to prevent subsequent legislatures his avocations, and to contract with respect from interfering with any other kind of prito his property, subject only to the restric-vate enterprise if, from improved methods in tion that he may not interfere therein with its conduct and for peculiar reasons, it aphis neighbor's rights or use of property. He pears to the legislative body to virtually mois bound to use his own property so as not to hopolize that branch of business, and that injure his neighbor's. That liberty I take to the owner takes advantage of his diligence, be guarantied by the constitution to him, or superior skill and advantages, to demand and to be a most valuable right. What force what to them seems an apparently high or or reason has the suggestion that the busi- even excessive price, in his labor or property, ness of the individual sustains some impor- of those who resort to him? The legislature, tant relation to a branch of trade in which in effect, says to the individual, when interother persons are largely engaged, and that fering to regulate the charges he may make it is therefore public in its nature, and there- in his business, It is true you are a prifore it should become the subject of legisla-vate individual engaged in a private and tive control as to charges? Is it because legitimate business, in the prosecution of those other persons complain of the charges, which you are authorized and protected by and allege that the business, as managed by the constitution, but, nevertheless, we think, those engaged in it, is virtually a monopoly? in the public interest, because your business Has government any concern or interest in has become so advantageous and so neces sary to a large portion of the public because | valid law, so far as the federal constitution of its superior facilities, that you shall not be was concerned, and that it violated no right, allowed to pursue it, unless you reduce your privilege, or immunity protected by that incharges to a rate fixed by us. As well may strument. A clause exists in the constituthe legislature claim a right to interfere to tion of this state which is similar to one of reduce and regulate the charges which a com- those in the federal constitution under which bination of manufacturers have fixed for a the claim of invalidity was made and denied certain line of goods. It seems to me that as to the Illinois statute. The case of Munn the theory of such legislation is a startling v. Illinois, 94 U. S. 113, establishes the point departure from the true conception of gov- that the Illinois statute there under discusernmental functions. They should work to sion, as applied to the particular facts of that protect and develop private rights, and to se- case, did not violate any provision of the fedcure to all individuals the uniform operation eral constitution, nor infringe upon any privof the constitutional guaranties. The police ilege or immunity protected by it. The facts power is incapable of being stretched to reach in these New York cases differ considerably, such a case as this, if we have any respect in certain particulars, from those in the for the provisions of the constitution. That Munn Case; and if the principles decided in power is properly exercised in the preserva- that case were upheld it might still become tion of the private rights of individuals, in of the greatest importance to distinguish the maintenance of public order, in the su- these differences, and to discuss and decide pervision of public health and morals, and in upon their materiality as applicable to the the prevention of a conflict of rights. Its question of the subjection of the defendants justification for interference with a private, to the provisions of this act. But the queslegitimate business is admissible only when tion which arises in limine is based upon the that business may be said to be affected by a assumption that the cases are substantially public use or interest, by reason of some aid, alike in their facts, and the question is this: grant, or privilege conferred by the state. In construing a clause in our state constituJudge Cooley says, in his valuable work on tion similar to one in the federal instrument, Constitutional Limitations, (page 737:) "The should we follow the interpretation of such mere fact that the public have an interest in clause as given by the federal court, which the existence of the business, and are ac- interpretation compels us to deny to these decommodated by it, cannot be sufficient, for fendants the relief they ask for, although that would subject the stock of the merchant otherwise we are satisfied that they are justand his charges to public regulation." This ly entitled to that relief? 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 the 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. (117 N. Y. 1, 621) If any right, privilege, or immunity claimed under the federal constitution or laws be de-. nied by this court, its decision is reviewable in the supreme court, and in such cases it is our duty to follow in the footsteps of that court, and to be guided and controlled by its decisions. But in this case the right is claimed under our state constitution, and in matters pertaining to its proper construction our decision is final, excepting that if, as construed by us, the constitution or our laws deny the existence of some right or privilege claimed by a party by virtue of the federal constitution or laws, our decision is reviewable by the federal court, not for the purpose of reviewing our construction of our PEOPLE ex rel. ANNAN v. WALSH, Police own constitution or laws, but to see wheth er, under the constitution or laws as construed by us, any right or privilege existing by virtue of the federal constitution or laws has been violated or denied, and, if so, to give it effect, notwithstanding the state law or constitution. But where we deny no right or privilege claimed, and, on the contrary, assert and protect it, there is no review by the federal court possible. 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 instrument, under which it has been denied by 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 distinguished and learned members, and yet in doing so we must give voice to the sentiments which, as we believe, possess judges and citizens alike throughout the land. It is only in the performance of our official duty that we venture to differ from that court regarding matters which we are bound to decide, and when there is an equal obligation to decide them in accordance with our own deliberate views. 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. Railway Co., 84 N. Y. 157, 186; People v. King, 110 N. Y. 418, at 424, 428, 18 N. E. Rep. 245, at 247, 249; and in Railroad Co. v. Railroad Co., 111 N. Y. 132, 19 N. E. Rep. 63. These are the only cases I have observed, although there may be others which have escaped my attention. liquors, comes within the narrowest definition of the police power, and is substantially denied by no one. In the Bertholf Case there was nothing which called for the approval or affirmance of the Case of Munn, or the very broad principle aeserted 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. Railway 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, 18 N. E. Rep. 245, 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 In Bertholf v. O'Reilly, 74 N. Y. 509, it the decision was that the public had this was decided that the legislature has power to right of resort to plaintiff's premises by his create a cause of action for damages, in fa- own dedication, even including colored pervor of one who is injured in person or prop- sons, upon payment of the prescribed fee. erty by the act of an intoxicated person, Judge Cooley supports the legality of laws against the owner of real property whose regulating places for public amusement, such only connection with the injury is that he as theaters, etc., upon the ground that they leased the premises, where the liquor caus- are properly the subject of police regulation, ing the intoxication was sold or given away, as they are generally licensed by the state or with knowledge that intoxicating liquors municipality wherein they exist. See Cooley, were to be sold thereon. In speaking of the Torts, 285. But I have failed to observe any police power, ANDREWS, J., in above case, statute in this state which attempts to limit cited the Slaughter-House Cases, 16 Wall. 36, the price which a theatrical manager shall be and Munn v. Illinois, supra, to show how far allowed to charge for admission to his entercourts have gone in upholding legislation af- tainments. Proper police regulation and infecting private rights and property as a due ex-spection, to the end that peace and good orercise of the police power residing within the der may be obtained and public morals reastate. He said those " "cases cases may perhaps be sonably protected, is one thing, while a deemed to have carried the right of legislative power to limit compensation is another and interference with private rights and property far greater and more dangerous power, and to its utmost limit, but they illustrate the the two powers are not necessarily co-existscope of the police power in legislation." The ent. The latter power is not only a dangerlegislation in question in the Bertholf Case ous one, but it is not called for by the same was placed upon the right of the legislature principles which permit, and, indeed, deto control the use and traffic in intoxicating mand, the exercise of the former under a liquors; and its authority to impose liabilities general right to regulate the manner, within upon those who exercise the traffic, or who reasonable rules, in which a man shall use sell or give away intoxicating drinks, for his property so as not to improperly interfere consequential injuries to others, the court with the proper enjoyment by his neighbor said, follows as a necessary incident. Such of his own property, or so as not to injure right of legislation as to the prohibition or the public health or morals, and in order regulation of the sale, etc., of intoxicating that proper safeguards may be observed for |