A PAPER READ BY JAMES K. EDSALL. The Granger Cases and the Police Power. MR. PRESIDENT and GentlEMEN OF THE AMERICAN BAR ASSOCIATION: The subject assigned me for consideration in this paper is "The Granger Cases and the Police Power." While we all recognize the class of cases referred to as "the Granger cases," it is due to the truth of history that I should say that this designation of those cases is, in fact, a misnomer. This name appears to have received its first public recognition, as applicable to these cases, in the dissenting opinion of a distinguished Justice of the Supreme Court of the United States, when he said: "I dissent from the judgments of the court in the several railroad cases arising in the States of Illinois, Wisconsin, Iowa, and Minnesota, commonly known as the Granger cases' and from the reasons on which the judgments are founded:" Stone v. Wisconsin, 94 U. S. 183. It thus appears that this name was bestowed upon these cases by an unfriendly hand. It is not the title under which the cases are reported, or by which they are designated in the opinion of the court. It "sticks," however, and it has become the title by which this series of cases is generally known on legal nomenclature. This is not the first instance in history when a name, originally applied in derision, has become the badge of an honorable distinction. Conceding that, as a general rule, names may be regarded as comparatively unimportant, yet when a name purports to be a concentrated statement of historical fact, we have the right to expect that it shall be essentially true, and shall not, at least, misrepresent such fact. The truth is that the organization named "Patrons of Husbandry," whose subordinate lodges or clubs were called "Granges," and whose members were therefore called "Grangers," had but little, if anything, to do with the enactment of the laws asserting the right of the State to exercise legislative control over public warehouses and railroads, which gave rise to the so-called "Granger cases." These laws were not in any sense either inspired by, or the product of any such organization. On the contrary they were the result of the intelligent conviction of thoughtful minds representing the great mass of the people, regardless of any special calling or party affiliation. Speaking of Illinois, this general public sentiment found expression in the Constitution of 1870, and was supplemented and carried into effect by the enactment of laws in 1871 and 1873, assuming legislative control of railroads and warehouses, in respect to their rates of charge. No political organization known as "Grangers" had a representative in the Constitutional Convention or General Assembly of Illinois in either of those years. These laws were not Granger laws, nor were the cases decided in the highest courts of the State and of the United States, sustaining their validity, in any proper sense “Granger cases." I may dismiss this digression from the line of remarks proposed to be made in this paper, by adding that the only political success ever accomplished by the so-called "Granger" organization in Illinois was in the year 1877, when, being merged in an "Independent Party," which had less than a dozen votes in both branches of the legislature, it happened that the two great political parties were so nearly equally divided, that these votes held the "balance of power," and this they so deftly used as to compel a majority of the General Assembly of that State to come to the Supreme Court of the United States, and, regardless of habeas corpus, or anything else guaranteed by Magna Charta or the Bill of Rights, take one of its weightiest members and transfer him to the chamber of the United States Senate. The series of cases specially referred to as "Granger cases," comprise Munn v. Illinois; Chicago, Burlington & Quincy R. R. Co. v. Iowa; Peik v. Chicago & N. W. Railway Co.; Chicago, Milwaukee & St. Paul R. R. Co. v. Ackley; Winona & St. Peter R. R. Co. v. Blake, and Stone v. Wisconsin, reported in 94 U. S., pp. 113 to 187. The leading or principal opinion of the court was delivered in the case of Munn v. Illinois. The judgment of the Supreme Court of the United States in these cases may, without exaggeration, be said to form an epoch in the judicial exposition of constitutional law in this country. These decisions, made in 1876, find their antithesis in the Dartmouth College Case (4 Wheat. 518), decided in the same court in 1819. These later cases do not overrule the Dartmouth College Case, but they re-assert fundamental legal principles which, though forming a part of the law, had for a long time remained comparatively dormant; and which, when invoked and given their due application, have the effect to limit, qualify and restrain within reasonable bonds, the operation of the principle assumed to have been settled by the Dartmouth College Case. The leading case of Munn v. Illinois arose in this wise. The General Assembly of Illinois, in 1871, passed an act which, among other things, prescribed maximum rates for the storage of grain in a certain class of warehouses, commonly called elevators, and required warehousemen to obtain license. therefor, and prescribed penalties for engaging in that business without such license, or for charging greater rates than those allowed by law. Messrs. Munn & Scott were prosecuted in the proper State court for a violation of this act, and were convicted and fined therefor. The case was taken on writ of error to the Supreme Court of Illinois and the judgment of the trial court was there affirmed. From this judgment a writ of error was prosecuted to the Supreme Court of the United States, upon which were urged, as grounds for reversal, the following federal questions; 1. That this act, prescribing such maximum rates for storage, was repugnant to that part of § 8, Art. 1, of the Constitution, which confers upon Congress the power "to regulate commerce with foreign nations and among the several States." 2. That it was repugnant to the clause of § 9 of the same article, which provides that "no preference shall be given to the ports of one State over those of another," and 3. That the act was repugnant to that portion of the 14th amendment which ordains that no State shall "deprive any person of life, liberty or property without due process of law." Neither point of objection was sustained, but the latter seemed to be the one chiefly relied upon, and formed the most difficult and interesting subject for consideration and decision by the court. On the part of the warehousemen it was insisted that their business of storing grain for hire was simply a private business; that their warehouses were private property; that they exercised no franchise or special privilege conferred by the State, and that they had the right to charge such price for their services and the use of their warehouses as they saw fit, or could agree upon with their customers who chose to do business with them. It was urged that if the power existed in the State to prescribe by law maximum rates of storage, such power might be so excercised as to practically destroy the profitable use of their property, which would in effect deprive them of such property without due process of law. It was an admitted fact in the case, that the particular warehouse in question had been built at great expense several years before the adoption of the State Constitution in 1870, and the passage of the Act of 1871; and it was not disputed that the structures built for grain warehouses or elevators were of such character that the same could not be profitably used for any other purpose. On the part of the warehousemen, it was insisted that their business and vocation was a private business in the same sense as is that of the farmer, merchant, or mechanic, and that the State had no more power to prescribe the maximum price that might be charged for the services or use of the property of such warehousemen, than it had in the case of either of the other vocations mentioned. On the part of the State it was insisted that warehousemen, for the storage of grain in the manner the business was conducted at Chicago, were engaged in a public employment as distinguished from ordinary business pursuits; and that in this regard they occupy a position similar to that of common carriers, who are held to "exercise a sort of public office," and have public duties to perform. It was shown that such warehousemen, like common carriers, were required by law to receive grain from all persons and store the same upon equal terms and conditions. It was conceded that Chicago was one of the greatest grain markets in the world; that a large portion of the cereal products of the States and Territories, west and northwest of that city, were shipped to that market and forwarded from thence to the consumers south and east; that in the ordinary course of business it was impracticable for the producer or shipper to avail himself of that market without having his grain stored in these warehouses. It appeared that there were then in Chicago fourteen of such warehouses, each having a storage capacity of from 300,000 to 1,000,000 bushels; that the same were owned by nine business firms composed of about thirty persons; and it appeared by stipulation that the prices charged and received for storage were such as had "been from year to year agreed |