These definitions are in accordance with the general sense of mankind. Indeed, if any one can define property eliminated of its attributes, incapable of sale, and placed without the protection of the law, it were well that the attempt should be made.

Of what value, however, is the right to sell, unless coupled with control of the price? or the right to lease or let to use, without the power to fix the rent? If the sovereign has usurped the control of prices of chattels or realty or of the use of land, then the sovereign power, in effect at least, to some extent does the selling or the letting to hire. In such case, to the extent of such control of prices, the property has passed out of the dominion of the individual, and into that of the sovereign. The value of the interests of the individual exists at the sovereign's will; and, if this were the established law of the land in relation to all or most sales and leases, Proudhon would have achieved a practical victory, and a long step have been taken towards putting in practice the theories of Ferdinand Lassalle and Karl Marx.

The case of Munn v. Illinois, 94 U. S. 113, was decided in 1876 by a divided court, Justices Field and Strong dissenting. The opinion of the majority, composed of the Chief Justice, Justices Clifford, Miller, Bradley, Swayne, Davis, and Hunt, was reported by Chief Justice Waite. I quote from the Syllabus prepared by the reporter, and, it is supposed, approved by the court, as follows: :-

1. Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and, when necessary for the public good, the manner in which each shall use its own property.

2. It has, in the exercise of these powers, been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and, in so doing, to fix a maximum of charge to be made for services rendered, accommodations furnished and articles sold.

The "&c." which follows the word "innkeepers" does not appear in the opinion of the Chief Justice. It is the reporter's expression, but it is properly employed to indicate that the court did not intend to limit the application of the principle to the enumerated avocations, but would extend it to all other traffics in like case. It is a symbol of indeterminate meaning, but of great significance, and requires us to look closely to the principles stated

by the court, which are to determine what avocations, other than those thus enumerated, are exercised subject to legislative control, on the theory of inherent sovereign power or of English and American custom, notwithstanding the specific restrictions contained in the Fifth and Fourteenth Amendments and in the Constitution of Illinois and probably that of every other State,-limitations which seem to have been designed to prevent the exercise of any inherent sovereign power by the Federal Government in any case, and of any inherent power in any State which should contravene or negative the Fourteenth Amendment, or any clause of the State Constitution. For it will be remembered that Munn v. Illinois was decided eight years after the adoption of the Fourteenth Amendment, and that the Constitution of Illinois, under which the legislation of that State had undertaken to fix the price of elevating grain, which was challenged but sustained in this case, contained the following provisions:

Article 2, § 1. All men are by nature free and independent, and have certain inherent and inalienable rights. Among these are life, liberty, and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.

§ 2. No person shall be deprived of life, liberty, or property without due process of law.

Similar provisions are to be found in all the State Constitutions. As specimens of their varying forms, I quote from the Constitutions of New York and Ohio.

The former is in the following words:

Article 1, § 6. No person shall . . . be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

In Ohio, the provisions of the existing State Constitution upon the subject are as follows:

Article 1, § 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.

$ 19. Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or

other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made. to the owner in money; and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.

A Constitutional provision more important in this connection is that of Pennsylvania, for the reason that it was under this that the legislation sustained in Powell v. Pennsylvania was adopted and upheld. The first article of the Constitution of Pennsylvania of 1874 is entitled "Declaration of Rights," and the first section is in these words:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.

In respect to this section, Pennsylvania follows in the line of other States, but § 26 of the same article is peculiar and very important. It is in these words :

To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate.

How the Constitution of Pennsylvania could have provided in more explicit terms that the delegation of police power embraced in the general grant of all legislative power should not enable the legislature to interfere with the right of acquiring, possessing, and protecting property, is not easy to imagine.

In all the Constitutions, the protection of life, liberty, and property is provided for by Bills of Rights; thus implying at least that these are fundamental rights, subject to which all delegated power is to be exercised. But in Pennsylvania, as if by anticipation to protect against the very wrong done in the case of Powell v. Pennsylvania, in prohibiting the continued beneficial use of useful property already in harmless existence under the sanction of law, this 26th clause expressly subordinates all the rest of the Con

stitution to the first article, "Declaration of Rights," of which the first section secures the free right of acquiring, possessing, and protecting property.

Returning to the case of Munn v. Illinois, we find that the principles or rules upon which we are to determine what avocations are within legislative control are stated in the fourth paragraph of the Syllabus of the case in these words: —

When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common good, as long as he maintains the use. He may withdraw his grant by discontinuing the

use.

The avocations named by the court are those of the ferryman, carrier, hackman, baker, miller, wharfinger, and innkeeper. Each one of these holds himself out to deal with all who seek his service, for compensation. Each of these, in relation to the property he owns and uses in his trade, is said by the court to have devoted it to a use in which the public has an interest; but therefore, in effect, he has granted to the public an interest in such use. Therefore, the avocation of elevating grain, being within the reason of the rule, was, by the decision of the court, subjected to the rule. This, not on the principle that the elevator was owned by an incorporated company, and that the legislature had the right to compel it to elect either to accept an amendment of the charter, under the power reserved in the Constitution of Illinois to alter, amend or repeal,— or to go out of business as such corporation, or to surrender the charter and take the chances of continuing business as an individual. On the contrary, the rule of the court applied to individuals, and was not founded on any theory of assent evidenced by accepting articles of incorporation. But the owner of a grain elevator no more holds himself out to the public as their servant than the owner of every shop or store, than every broker, commission merchant, or other person pursuing what is commonly called private trade. Munn was not, like a common carrier or innkeeper, bound by law to serve any decent person applying to him. The decision of his case did not in any degree rest upon such supposed legal obligation. A baker offers his bread for sale. to those who come for the purpose of buying. He is not liable to an action for refusing to sell. A. T. Stewart & Co. offered their

goods for sale to every proposing purchaser, but with the same reserved right to refuse to sell. Nor do the Supreme Court limit their opinion upon the case of bakers to those who bake the flour of others only. The application, therefore, of this rule to elevators requires its extension to all commercial persons, or persons engaged in commerce of any kind, and to all mechanics and manufacturers. Each one of these as fully devotes his time, his labor, and his property to a use in which the public has an interest as does a baker or the owner of the grain elevator. So, too, do all barbers, livery stable keepers, boarding and lodging house managers, saloons and restaurants, draymen and carters, and multitudes of others. The owner of a cotton press cannot be successfully asserted to be beyond the rule applied to proprietors of grain elevators, nor can midwives, apothecaries, or undertakers. Judge Field, in the dissenting opinion, calls attention (p. 141) to the necessary application of the majority doctrine to owners of tenements, manufacturers of cotton, woollen, and silk fabrics, of machin ery, and of all kinds of utensils, and to printers and publishers.

It will be admitted that telegraphs and telephones are within the rule, unless protected by the sanctity of patent rights; but this protection has been denied by the Supreme Court of Indiana.*

These Indiana opinions, denying that letters patent secure to the inventor the exclusive control of the price at which the patented article may be sold or leased, are supposed to be supported by the opinion of the Supreme Court of the United States in the case of Patterson v. Kentucky, 97 U. S. 501, in which the opinion of the court, reported by Mr. Justice Harlan (Mr. Justice Hunt not sitting), holds that (Syllabus) —

Where, by the application of the invention or discovery for which letters patent have been granted by the United States, tangible property comes into existence, its use is, to the same extent as that of any other species of property, subject, within the several States, to the control which they may respectively impose in the legitimate exercise of their powers over their purely domestic affairs, whether of internal commerce or of police.

For this reason, it was held that a statute of Kentucky prohibiting the sale of oils condemned by the State Inspector as "unsafe for illuminating purposes" interfered with no lawful right con

*Hockett v. State, 105 Ind. 250; Central Union Telephone Co. v. Bradbury, 106 Ind. 1; Johnson v. State, 113 Ind. 143; Central Union Telephone Co. v. State, 118 Ind. 194, 598.