That is only

vested interest in any rule of the common law. one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim of the Legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time. and circumstances. To limit the rate of charge for services rendered in a public employment, or for the use of property in which the public has an interest, is only changing a regulation which existed before. It establishes no new principle in the law, but only gives a new effect to an old one."

"We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by Legislatures, the people must resort to the polls, not to the courts." Id. 134.

It may be a matter of some interest to the profession to note the manner in which the application of an old principle to new facts, is received, and the process by which it works out its results, in the judicial mind. It is through this process that the law attains its growth and development. The case of Munn v. Illinois was submitted to the Supreme Court of that State at its September Term, 1872, on printed arguments, and taken under advisement. It will not, I trust, be regarded as an improper betrayal of "court secrets," if I state (upon information derived from three members of the court, after they had retired from that bench) that when the case was first considered in conference it was agreed, with scarcely a dissenting voice, that the act prescribing maximum rates for the storage of grain was unconstitutional and could not be sustained. It is said to have been then remarked by one of the judges (who finally reached the conclusion that the act was free from constitutional objection) that the Legislature might as well prescribe by law the price he should pay his

tailor for his coat, as to pass an act of this kind. It may be difficult to realize it now, but there is no doubt that this was the view then generally prevalent in the professional and judicial mind. I think it is safe to say, that, at that time, four lawyers out of every five, would have taken that view. Fortunately the case was not decided upon these off-hand first impressions. No decision of the case was announced at the time of its first consideration in conference, for the reason that the formal opinion of the court had not been prepared. Soon after this, two of the members of the court, as then organized, retired from the bench, and successors were elected. Thereupon a re-argument was ordered, in order that the case might be formally submitted to the court as then constituted, so that all of its members could, with propriety, participate in its decision. The attorney general of the State, availing himself of this opportunity, filed an argument in support of the validity of the law. Upon this, together with the other arguments on file, the cause was again submitted to the court. at the September Term, 1873. In January, 1874, the opinion of the court, written by the venerable Chief Justice Breese, was filed, as reported in 69 Illinois Reports.

This opinion was concurred in by five of the seven justices composing the court. There is no reason to doubt that if the opinion of the court had been announced at the term the case was first submitted, the result would have been the reverse of what it finally was. It was a case which required the court to resort to first principles, and apply them to the new circumstances and conditions, and new modes adopted in the transaction of this branch of trade. When this is done, we find all the substantial reasons which justify the State in assuming legislative control of ferries, common carriers and like public. employments, or which sustain the validity of usury laws, doing service with equal force and vigor in support of this

enactment.

The principles thus established in the leading case of Munn v. Illinois, necessarily governed and controlled the other cases

of this series, decided at the same time, involving the question as to the power of State Legislatures to enact laws prescribing the maximum rates of charges for the transportation of passengers and freight by railroad corporations.

That railway companies are common carriers, and as such exercise a public employment; that they are created to subserve a public purpose, and that they are authorized to construct their lines of road for public use, is so obviously true, and had been so frequently adjudged, that it is difficult to conceive how these positions could be seriously controverted.

It has been the universal practice to authorize railroad corporations to exercise the sovereign power of eminent domain to obtain land for right of way and other necessary purposes. That this power could only be exercised to obtain property for a public use, is a principle of constitutional law so elementary in its character, and so universally conceded, as not to justify discussion or the citation of authority in its support.

The whole line of decisions, both State and Federal, which sustain the validity of municipal bonds, and the right of municipal taxation, to aid in the construction of railroads, can only be vindicated upon the ground that such roads are built to subserve a public use.

The Supreme Court of the United States was most solemnly committed to this doctrine long before the decision of the so-called Granger cases. In the case of Olcott v. Supervisors, 16 Wall. 678, it was held :

"That railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency

is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a State Legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is that such a road is a highway, whether made by the government itself or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from legislative grant." *** "Whether the use of a railroad is a public or a private one, depends in no measure upon the question who constructed it or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the function performed is that of the State. Though the ownership is private, the use is public. So turnpikes, bridges, ferries, and canals, although made by individuals under public grants, or by companies, are regarded as publici juris.”

On the other hand, municipal bonds issued in aid of a manufacturing corporation are held to be void, for the reason that the same is a private, and not a public, purpose.

Cole v. La Grange, 113 U. S. 1.

Loan Association v. Topeka, 20 Wall. 655.

In none of the series of railroad cases decided at the same time as Munn v. Illinois, did it become necessary for the court to determine whether it was competent for a State Legislature to bind itself and successors by contract not to exercise this power of legislative control over its railroads to prevent extortionate charges, in case such abuses should subsequently arise. The court held that if the power to make such a contract existed, it had not been exercised in either of those cases; and that the railroads in question were each

subject to legislative control. These judgments of the Supreme Court of the United States were the result of the most mature deliberation. At the conclusion of the opinion of the court in Munn v. Illinois, delivered by Mr. CHIef Justice WAITE, it is said:

"In passing upon this case we have not been unmindful of the vast importance of the questions involved. This, and cases of a kindred character, were argued before us more than a year ago by most eminent counsel, and in a manner worthy of their well-earned reputations. We have kept the cases long under advisement in order that their decision might be the result of our mature deliberation."

And while two of the justices of the court dissented, and two of them appear to continue their dissent upon this class of questions, no disposition has been manifested by the court. to retrace its steps, or in any wise qualify the principles upon which those decisions rest, but the same have been reaffirmed and carried forward to their logical results in subsequent cases. Ruggles v. Illinois, 108 U. S. 526; Railroad Commission Cases, 116 U. S. 307.

The State courts have cordially approved and followed the ruling of the United States Supreme Court in this class of cases; and the same have been accepted as sound expositions of the law by the ablest text-writers.

People ex rel. Boston & Albany R. R. Co., 70 N. Y. 570.

Field on Corporations, §§ 43, 44.

The State laws, the validity of which has been thus sustained, rest upon that power inherent in every government, whereby it protects the citizen in his rights, and in so doing undertakes to reconcile apparently conflicting rights, redresses wrongs, punishes offenses, and essays to promote the general welfare.

This inherent sovereign faculty of government has received the conventional name of