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Argument for Plaintiffs in Error.

tows the canal-boat is not a common carrier. Alexander v. Greene, 3 Hill, 9; Caton v. Rumney, 13 Wend. 387; Wells v. Steam Nav. Co., 2 N. Y. 204.

The stationary elevators along the Brooklyn shore are wholly private. Wetmore v. Brooklyn Gas Light Co., 42 N. Y. 384; Woodruff v. Havemeyer, 106 N. Y. 129. Those were the cases of the wharves 'in front of the elevators, but the principle was distinctly enunciated that the riparian owners could exclude the public.

It is not conceivable that all who handle merchandise brought to New York by rail shall be held to be quasi public, and subject to have prices limited for their services, because the merchandise has been carried over a way built by permission and under a charter granted by the State. The fact that the one is a way on land, maintained by a grantee or appointee of the sovereign, and the other a waterway, maintained by the sovereign, does not alter the principle under discussion. But even if the law were or can be limited to grain carried through the canal, it is certain that the canal does not impress with a public character those who are engaged in carrying merchandise through it. Fish v. Clark, 49 N. Y. 122; Wells v. Steam Nav. Co., 2 N. Y. 204; Alexander v. Greene, 3 Hill, 9.

II. This law cannot be defended upon the ground that the legislature may determine in an act what rates are equal and reasonable.

Upon the face of this act appears its true nature, intent and aim. Experience had shown that grain was most easily and economically moved and handled where the bill of lading under which the canal carrier transports his cargo bound him to deliver his cargo out of his boat and to pay therefor, and where the owner delivered the cargo to the ocean carrier, who, in his turn, bore the expense of stowing the grain against the voyage. But the canal-boatmen, conceiving this to be unjust, secured in this act a provision that they shall only pay for shovelling the grain to the leg of the elevator, and for that only at the actual cost of labor; and it is enacted also that the ocean carrier shall only be required to pay the actual cost of the labor involved in stowing his cargo.

Argument for Plaintiffs in Error.

It results that the elevator owner must hire men, superintend their labor and be responsible for its results, and all without compensation, for he can charge only what he pays out for labor. The law, therefore, cannot be defended as a determination what rates are equal and reasonable. It is a law prescribing the terms of the several contracts involved in moving grain. It enacts who shall pay. It provides how much each shall contribute. It compels the grain owner to pay for all the work done for him and for a part of the work done for the canal and ocean carrier.

III. This law is unconstitutional even if it be conceded or determined that the "Ceres" is a common or public elevator, for that would at the very furthest do no more than lower the rights of an elevator owner to those of a railroad company or other common carrier. Chicago, Milwaukee & St. Paul Rail way v. Minnesota, 134 U. S. 418. Since that decision we understand it to be the settled doctrine of this court, that a law exercising the function of the State to control the prices charged by railroad common carriers and others subject to the like regulation, in order that their charges may be reasonable, must provide judicial forms and judicial machinery for the determination of the question or at least must leave the question open for an examination in the courts, and that an attempt to regulate rates without providing judicial machinery and depriving the constituted courts of jurisdiction is unconstitutional and void.

It follows that unless the law of New York permits a judicial investigation into the reasonableness of the rates fixed it also is in violation of the Constitution of the United States.

Whether a statute is constitutional or not is always a question of power-that is, a question whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished and the mode of enacting it has kept within the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been

Argument for Plaintiff's in Error.

properly exercised. If evidence was required it must be supposed that it was before the legislature when the act was passed, and if any special finding was required to warrant the passage of the particular act it would seem that the passage of the act itself might be held equivalent to such finding. Cooley's Const. Lim. 222.

The "subject matter" raises the question whether floating elevators are within the legislative jurisdiction. "The manner in which its object is to be accomplished" means that a "subject matter" may be concededly within the legislative jurisdiction, and the law be void for a defect in methods of accomplishment. This court, in The Chicago, Milwaukee & St. Paul Case, held the Minnesota law unconstitutional and void for just such a defect, viz.: an attempt to exclude the courts from jurisdiction over the question of reasonableness of rates, and this defect of method is, we contend, equally fatal to the New York law.

IV. As to the judgment of this court in Munn v. Illinois, 94 U. S. 113, we submit, with very great respect that the mediæval rules and instances were allowed too great influence in that judgment. When England was mainly a pastoral and agricultural country, with her trade and commerce in their infancy, all sorts of burdensome restrictions were imposed upon the individual by a paternal theory of government for the supposed benefit of trade. But even at these times and in the midst of this mediæval darkness, the course of the judges was towards freedom. In the latter part of the eighteenth century there was a general awakening to the false theories which had permitted these impositions. In England Adam Smith's great work was followed by many repeals of vicious regulations, and by an entire cessation of new restraints. In France the edict of Louis XVI liberated trade from corresponding restrictions. In America the Declaration of Independence set forth the inalienable right of all men to life, liberty and the pursuit of happiness; that is, among other things to the right to enjoy and acquire property. That the essence of the right of property is in its use and in the power of alienation for use by others is obvious. Without

Argument for Plaintiffs in Error.

these the right is illusionary and valueless. Chief Justice Marshall long since taught us that to tax the sale of property is to tax the property itself. Brown v. Maryland, 12 Wheat. 419. The same proposition was repeated in Welton v. Missouri, 91 U. S. 275, Mr. Justice Field delivering the opinion of the unanimous court. See also Wynehamer v. People, 13 N. Y. 378; In the matter of Jacobs, 98 N. Y. 98, 106.

Our whole commercial history shows that our Constitution fixes a great and wide gulf between the old and the new; between mediæval darkness, which permitted every detail of one's life to be regulated, and modern freedom of action. We do not think that the judgment in the Munn Case estimated truly the condemnation of the old system, its separation from the new, and the consequent weakness of argument drawn from mediæval times.

Mr. Chief Justice Waite made the basis of his judgment the custom "in England from time immemorial and in this country from its first colonization to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished and articles sold."

We very respectfully deny the custom or the right to regulate the price of bread. Cooley's Constitutional Limitations, 736, n. 3; Mobile v. Yuille, 3 Alabama, 137; S. C. 36 Am.

Dec. 441.

Mills were regulated at first, and the toll which the miller might take was prescribed, because to grind grain was a franchise and might not be done without permission from the king or the lord of the manor. 15 Viner's Abridgment, 398; Cooley's Constitutional Limitations (5th ed.) 736; Hix v. Gardiner, 2 Bulstr. 195.

Hackmen have a legal monopoly. It is a trade which the law can prohibit and suppress, but which it licenses and controls instead. The right to ply vehicles for hire from exclusive stands in the streets is not a natural right, but wholly acquired from the State, which of course has the right to prescribe terms to the privilege it creates. Cooley's Constitutional Limitations (5th ed.) 736.

Argument for Plaintiffs in Error.

To have a ferry is a franchise, and the governmental control is based on the fact that the right to use a boat for ferriage must come by state grant, which prescribes the conditions of the use. Sir Matthew Hale, De Portibus Maris, quoted by Chief Justice Waite, p. 126; Mayor v. Starin, 106 N. Y. 1; Mills v. St. Clair County Commissioner, 4 Illinois (3 Scammon), 53; Trustees &c. v. Tatman, 13 Illinois, 27.

That private wharves are the rule and public wharves the exception, may be proved from C. J. Waite's quotation from Sir Matthew Hale's text, De Portibus Maris. Munn v. Illi nois, 94 U. S. 127. In New York, the Brooklyn wharves are private. Wetmore v. Brooklyn Gas Co., 42 N. Y. 384; Woodruff v. Havemeyer, 106 N. Y. 129. And it is doubtful if warehouses are public in that State. In re Eureka Warehouse Co., 96 N. Y. 42.

In mediæval times common carriers and common farriers were alike bound to practise their art on demand, and show skill in it. Jackson v. Rogers, 2 Shower, 332. The distinction. between public and private carriers was known of old. Hutton v. Osborne, cited in Selwyn's Nisi Prius, 401. This distinction is still preserved in the law. Allen v. Sackrider, 37 N. Y. 341; Fish v. Clark, 49 N. Y. 122.

There was always, then, in every case where a wharf, or a warehouse, or an inn, or a carrier was alleged to be public or common, a question of fact to be determined, viz. Had the individual done the acts or had his property the antecedents and concomitants which give the public rights to his services, and the use of his property? We affirm that this right to have it established in court by evidence that the individual is in the public service is a property right and is guaranteed by the Constitution of the United States.

The opinion of the Chief Justice in Munn v. Illinois, disposes of this element in the authorities by adjudging that it is a question for the legislature, and presuming in favor of the law that the legislature has decided that all who are within the terms of the law were at its date in a common or public employment, and fit subjects for regulation of prices.

The law of New York here in question attempts to regulate

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