Transport. 224 THE DOCTRINE OF PRESUMED DEDICATION OF "PROPERTY does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community generally. 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 the grant by discontinuing the use; but so long as he maintains the use, he must submit to the control." [Opinion of Mr. Chief-Justice Waite, in Munn vs. Illinois, 4 Otto's R. pp. 113, 126.] IN the April (1881) number of the "North American Review," I published an article on "The Ownership of Railroad Property." It was the object of that article to maintain that the property of railroad corporations, which has been purchased by private funds, has all the attributes of private property; and that, unless the charter of the corporation, or some law of the State which, by fair implication, or by express provision, is to be regarded as a part of the contract between the State and the corporation, has reserved to the State a power to regulate the rates of fare and freight, the corporation has the same right to fix its own rates as the owner of any other property has to determine the price for which he will allow the use of his property, and will render his personal services in connection with that use. I was aware, of course, that a doctrine had been enunciated by a majority of the learned justices of the Supreme Court of the United States, which ascribes to the legislative power an authority to presume that private property has been ༢ clothed with a public interest, whenever the owner of the property uses it in a manner to make it of public consequence, and to affect the community generally; and that from this assumption of a public interest, granted by the owner himself, as a substantive source of legislative power, had been drawn a legislative authority to control the price for the use of the property, and the services rendered in connection with it. Within the limits assigned by the "Review" to my discussion of this subject, it was impossible for me to make a full examination of this doctrine. I have placed at the head of this paper the terms in which the doctrine was laid down, in the opinion of the court in which it was first promulgated, in order that it may stand as the text on which I propose to comment. It may, perhaps, be asked whether I propose to appeal from the Supreme Court of the United States, in a matter of constitutional law, and to what tribunal I intend to make that appeal? An answer can be frankly given to any one who makes this inquiry. It is my habit to regard the Supreme Court of the United States as the ultimate arbiter of constitutional questions that involve any provision of the Federal Constitution, and to treat any decision of that tribunal with entire decorum. But I do not suppose that any one will imagine that a new doctrine enunciated by that court, or enunciated by it for the first time, is not a proper subject of examination. Nor do I suppose that any one will question the existence of another tribunal, composed of what may be called the aggregate judicial mind of the nation, and the thinking and reasoning part of the public. Public opinion may, and does, review the constitutional doctrines announced and acted upon by the Supreme Court of the United States; and sometimes this review has been followed by very practical consequences. We have had one very notable instance in which a constitutional doctrine enunciated by a majority of that bench has been rejected by a vast majority of the nation.* All that can be required, in discussing any proposition of constitutional law that has been promulgated by that court, is that the limits of a respectful decorum be not overstepped. No one, probably, will be inclined to anticipate that those limits will be disregarded by me. And, in regard to the practical value of such a discussion as I now offer to the public, I presume that no one The Dred Scott case. will question the possibility of a judicial revision of a doctrine which has a strong tendency to unsettle the foundations of property, and which has, therefore, been seriously dissented from, both on the bench and elsewhere. My relation to this subject is purely voluntary, and in no degree affected by any concern in any of the railroad corporations which are engaged in defending the interests which they hold in trust for a vast number of individuals. But I have long been in the habit of regarding it as a duty to make the studies of a life-time useful to the public, so far as my ability may permit, and as the intrinsic soundness of my views may give any value to what I offer for the consideration of others. The reader will observe that the doctrine announced in the passage which is quoted at the head of this paper from the opinion of the court in the case of Munn vs. Illinois, was a very broad proposition, made applicable, by its terms, to every case in which the use of private property in any business or employment affects the community at large. It was necessary to make the proposition thus broad and sweeping, because the doctrine was resorted to as an answer to the objection that a legislative act which curtails the owner's full dominion over his property deprives him of it "without due process of law." It might be wished, indeed, that the court had been able to define more specifically the conditions which clothe private property with a public interest. The conditions which were defined, so far as a definition was given, were that the property is "used in a manner to make it of public consequence, and affect the community at large." Precisely what is meant by using private property in a manner to make it of "public consequence," or to make it "affect the community at large," it is not easy to discover from anything that was said by the court in the opinion which first promulgated this doctrine. But taking the very comprehensive and general terms in which the conditions were given, it would seem that by "public consequence" is meant any incidental effect which makes the use of the property a matter of importance to more persons than to the owner. In like manner, the condition that the particular use or employment of the property "affects the community at large," is substantially the same thing as making the use or employment a matter of importance to any indefinite number of persons who may have occasion to avail themselves of the privilege of using the property. In this sense, and I can see no other meaning to attach to the definition,—it is impossible to draw a line between those uses or employments of private property which become of public consequence, or affect the community generally, and those which do not. Neither the amount of property used in the employment, nor the number of persons affected, nor the nature of the employment, can determine whether the case is within or without the definition. If the degree more or less in which the community generally is affected by the employment is the test, who is within and who is without the definition? The blacksmith who shoes horses, or the barber who shaves men's faces, is just as much within the terms of this definition as the owner of a grain elevator, or the largest railroad corporation in the country. The farrier and the barber each has his "public"; each exercises an employment which affects an indefinite number of persons, and therefore affects the community generally. The same thing is true of the railroad corporation which employs a capital of a hundred millions, and of the farrier, or the barber, whose whole stock in trade could be bought for fifty dollars. Neither the dignity of the employment nor the value of the property can affect the question. The library of the lawyer or the clergyman, the instruments of the surgeon, or any other property, the use of which is directly involved in the exercise of a profession, is made by the owner of public consequence, and the use of it affects the community generally, in just as true and exact a sense as the rolling stock of the largest and richest railroad in the land. Questions of degree, the number of persons affected, the extent to which they are affected, determine nothing. All employments, in which the use of private property is necessary, affect the community more or less; and if the doctrine of the court is a sound one, they are all within its broad and unqualified terms. The dictum or statement of Lord Hale-referred to by the court that when private property is affected with a public interest, it ceases to be juris privati only, is certainly an old truism of the common law. But it is none the less necessary to determine when, and how, the property in a particular case is affected with a public interest. Neither Lord Hale nor any other sage of the common law ever laid down such a definition as that propounded by seven out of nine of the judges of our Supreme Court. The principle of the common law of England is, that private property ceases to be privati juris only, not when its use affects the community generally, but when the owner enjoys by public grant, or by his peculiar situation, some exclusive privilege, which shuts out all competition, and makes it indispensably necessary for the public to resort to his property in the exercise of their own employments, or in the prosecution of their own business. And this is the modern as well as the ancient doctrine of the common law. There must be some exclusive privilege conferred by public authority, or practically resulting from the absence of all other means of obtaining what the public wish to obtain, before the right of public regulation can come in and deprive the owner of the full dominion over his property. Neither of these things is true of any of our railroad corporations. None of them hold any exclusive privilege, conferred by public authority, which excludes individuals from transporting their persons or property by any other mode of conveyance. And none of them are practically so situated, in regard to the space between one locality and another, that they can be said to have it in their power to compel individuals to use their road. The fact that there is but one direct railroad from New York to Albany does not prevent me from traveling between the two cities by water. The fact that merchandise can be carried cheaper, or must be carried at a higher rate, from New York to Chicago by rail, than it can be or must be by water, or vice versa, prevents no one from choosing the one or the other mode of transportation, just as he sees fit. Competition is open everywhere: open by law, and open practically. There may be as many railroads built from New York to Albany as capital can be found to build, and as the public may demand; and so long as there is but one, there is nothing in the situation of that one to prevent a resort to any other means of conveyance. If the railroad conveyance is quicker, or safer, or more convenient, it is an advantage which addresses itself entirely to the choice of individuals. It is not the kind of advantage which the common law contemplates, when it says, for example, that a man who owns the only wharf in a port, or who has an exclusive license for a wharf in that port, must submit to have his wharfage regulated by public authority. The advantage which the railroad affords over other means of conveyance could not exist unless there were other means of conveyance. The very existence of that advantage conclusively proves that there is |