upon and established by the different elevators and warehouses in the city of Chicago, and which rates were annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year next ensuing such publication."

Referring to these admitted facts and other concessions of a like nature contained in the briefs of counsel for the warehousemen, the court say:

"Thus it is apparent that all the elevating facilities through which those vast productions of 'seven or eight States of the West' must pass on the way to four or five States on the sea shore,' may be a virtual monopoly. Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the inn-keeper, or the wharfinger, or the baker, or the cartman, or the hackneycoachman, pursues a public employment and exercises a sort of public office,' these plaintiffs in error do not. They stand, to use the language of their counsel, in the very' gateway of commerce' and take toll from all who pass. Their business most certainly tends to a common charge, and is become a thing of public interest and use.' Every bushel of grain for its passage' pays a toll which is a common charge,' and therefore, according to Lord Hale, every such warehouseman ought to be under public regulation, viz., 'that he take but a reasonable toll.' Certainly, if any business can be clothed with a public interest, and cease to be juris privati only,' this has been." Munn v. Illinois, 94 U. S. 132.

We have stated somewhat at length this finding of facts, so to speak, made by the court in its opinion, as to whether the business and vocation of these warehousemen was juris privati only, or juris publici, because upon that point hinges the question as to whether the right of governmental control recognized in the common law authorities as properly applicable to the latter, was rightfully applied in this case.

The court in the opinion make liberal citations from Sir Mathew Hale's Treatises, De Portibus Maris and De Jure

Maris, as published in Hargraves' Law Tracts, which abundantly support the position that if the property is devoted by its owner to a public use, in the proper sense of those terms, the price he may charge for the use thereof, or for his services in connection therewith, may be regulated by law; and that it is a proper exercise of governmental power to prescribe by law maximum rates of charges therefor. It is shown that the principles thus laid down by Sir Mathew Hale have received repeated and frequent recognition and approval in the English courts, in which laws prescribing the rates of charges for ferrymen, warehousemen, common carriers, and others pursuing public employments of like nature, have been upheld and enforced. And laws based upon the same principle, have existed and been enforced, from an early day, in nearly every State in the Union. The real question was whether the principle upon which those laws rested was not broad enough, when properly applied, to sustain this act of the General Assembly of Illinois.

This general principle is fairly deducible from all the authorities:

Whenever any person pursues a public calling, and sustains such relations to the public that the people must, of necessity, deal with him, and are under a moral duress to submit to his terms, if he is unrestrained by law, then, in order to prevent extortion and an abuse of his position, the price he may charge for his services, or use of his property, may be regulated by law.

The right of government to prescribe the rates of toll for a common ferryman, who may own, not only both banks, but the fee of the bed of the river across which the ferry extends, rests upon this principle. In such case the traveler does not stand upon equal footing with the ferryman to negotiate the terms upon which he shall be ferried across the river. It is true he may retrace his steps and abandon his journey, if he is not willing to submit to the ferryman's terms; or he may go miles out of his course and cross the river at another ferry,

or bridge; but this may be so inconvenient or at such variance with his necessities, as to be impracticable. He is therefore under a moral duress to submit to the ferryman's terms; and the State may in the exercise of its just and rightful authority, intervene to restrain the ferryman from any such abuse of his position.

It may be said that the State may exercise this power in respect to ferrymen, because the keeper of a common ferry exercises a franchise derived from the State. This is true, but there is no magic in the word franchise. Why may the State or sovereign treat the right to maintain a common ferry as a franchise? Why may not the owner of both banks and the bed of a river maintain a common ferry over the same, and collect for his services such compensation as he may see fit to charge, without receiving from the State a grant of authority, or franchise therefor?

This brings us back to the starting point. The right to maintain a common ferry and collect tolls from all who use it, is treated as a franchise and therefore subject to governmental supervision and control, because it is one liable to abuse, to the great detriment of the public, if not subjected to such governmental supervision and control. The right to impose a toll upon all who pass over a common ferry (as all the authorities agree,) becomes a common charge, and thus a matter of public concern, and is therefore subject to governmental control. The right to impose a toll or storage fees, upon all the grain shipped to one of the greatest grain markets in the world, when exercised by nine business firms so situated that they could each year agree in advance between themselves as to the rates they would charge for the ensuing year, thus excluding the possibility of a healthy business competition, and forming a close monopoly of the business, also became a common charge, and a matter of public concern, subject to governmental control.

The right of governmental control in each case rests upon the same principle.

The conclusion of the court upon this branch of the question is expressed in its opinion in these words:

Looking, then, to the common law, from whence came the right which the Constitution protects, we find that where private property is affected with a public interest, it ceases to be juris privati only. This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public. for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control." Munn v. Illinois, 94 U. S. 126.

Adverting to the fact that it appeared that the warehouse in question had been built and the business established several years before the State passed the law under consideration, or otherwise asserted its right of legislative control, the court say:

"It matters not in this case, whether these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. What they did was, from the beginning, subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities for the common good. If they did not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor of a hackney carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had

purchased his horses and carriage and established his business before the statute or ordinance was adopted." Id. 133.

In other words, the rightful powers of government are never lost or forfeited by mere non user. They may lie dormant, to be called into active use whenever abuses may exist to make it necessary, or the exigencies of the times may require; and of this the legislative department of the government is the proper judge.

Another question of great practical importance in the case, is thus stated and disposed of by the court:

"It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question."

"As has already been shown, the practice has been otherwise. In countries where the common law prevails, it has been customary from time immemorial, for the Legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps, more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. But that is because the Legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum charge, as one of the means of regulation, is implied. In fact, the common law rule which requires the charge to be reasonable, is itself a regulation as to price. Without it, the owner could make his rates at will, and compel the public to yield to his terms, or forego the use." "But a mere common law regulation of trade or business be changed by statute. A person has no property, no

may