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reserved the right of alteration and repeal, the State may extend its regulations so far as to fix the rates of transportation, and to compel submission to the constant supervision of commissioners, whose duty it shall be to see that the laws are obeyed, and that absolute impartiality is observed.1

Regulation of Prices. Formerly it was common by legislation to regulate wages, and the prices of merchandise, or whatever any one person might have to dispose of to another. To some extent this was done in this country in colonial days, but never generally; and the old laws on the subject were unquestionably innovations on common right, and usurpations of authority. In some cases, however, the right to regulate charges is still exercised, and in the following cases may be justified on principle:

1. Where the business is one the following of which is not a matter of right, but is permitted by the State as a privilege or franchise. Under this head may be classed the business of setting up lotteries, of giving shows, &c., of keeping billiard-tables for hire, of selling intoxicating drinks, and of keeping a ferry or toll bridge.

2. When the State on public grounds renders to the business special assistance by taxation, or under the eminent domain, as is done in the case of railroads.

3. When, for the accommodation of the business, special privileges are given in the public streets, or exceptional use allowed of public property or public easements, as is the case with hackmen, draymen, &c.

4. When exclusive privileges are granted in consideration of some special return to the public, or in order to secure something to the public not otherwise attainable.2

1 Chicago, &c. R. R. Co. v. Iowa, 94 U. S. Rep. 155; Peik v. Chicago, &c. R. R. Co., 94 U. S. Rep. 164.

2 Slaughter House Cases, 16 Wall. 36.

To these may be added:

5. Those employments which are quasi public, and essential to the business of the country, but of which the circumstances give to a few persons a virtual monopoly at each important commercial centre, such as those who own elevators for the storage of grain have in the city of Chicago.1

6. The case of money loans. This last is an exception difficult to defend on. principle; but the power to regulate the rate of interest has been employed from the earliest days, and has been too long acquiesced in to be questioned

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Monopolies. Every exclusive privilege is to some extent an infringement upon equal rights, and therefore ought to be capable of being defended on some ground that under the circumstances justifies it. But monopolies are undoubtedly admissible in some cases. An illustration is had in the case of a patent, and another in the case of a copyright of a book or print. Monopolies in all kinds of business were at one time common in England; but they were held to be illegal at length, the court declaring that "the sole trade of any mechanical artifice, or any other monopoly, is not only a damage and prejudice to those who exercise the same trade, but also to all other subjects; for the end of all these monopolies is for the private gain of the patentees.' It is certain that they cannot be granted in such ordinary vocations as can be left open to all to the common benefit; but they sometimes may be given as a matter of regulation, where the business is such that the public interest can be best subserved and protected by confiding it to one person, or association of persons, who shall manage it exclusively. For example, the exclusive right to supply water or gas-light in a city or

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1 Munn v. People, 69 Ill. 80; Munn v. Illinois, 95 U. S. Rep. 113. 2 Darcy v. Allain, 11 Rep. 84; Broom, Const. Law, 500.

part of a city is sometimes granted,1 or the exclusive right to lay railway tracks in its streets; and it has been held that a corporation may be given the exclusive right to slaughter cattle for the markets of a city, it being required to do so impartially for all who apply, and at reasonable rates. This obligation to serve the public impartially would seem to be an essential incident to any grant of a monopoly, since without it it would be impossible to justify the grant on public grounds.

Combinations to effect monopolies are opposed to the public interest, and may be forbidden and punished. So combinations to prevent men being employed by others, through force or threats or any other means beyond the employment of reason or solicitation, are illegal, and if successful will be actionable at the common law.

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Sumptuary Laws. Montesquieu thought sumptuary laws essential to prevent extravagance in a republic, but the notion has long been exploded. They are plain invasions of individual liberty, and therefore are forbidden. Every person must be allowed to judge of his own table, and to dress as he pleases, subject to such police regulations as may be established for the preservation of public order and public morals. Women, for example, may be forbidden to go about in the ordinary garb of men, as a necessary regulation against immorality and indecency. So every person must be allowed to deal with his property as he pleases, subject to reasonable regulations for the protection of others. He cannot, for example, be compelled against his will to improve his real estate."

1 State v. Milwaukee Gas Co., 29 Wis. 454.

2 Slaughter House Cases, 16 Wall. 36.

3 Carew v. Rutherford, 106 Mass. 1. See Hornby v. Close, L. R. 2 Q. B. 153.

4 Spirit of the Laws, b. 7.

5 Gaines v. Buford, 1 Dana, (Ky.) 479; Violett v. Violett, 2 Dana, (Ky.) 323.

Impartial Protection. Every person, however low, or degraded, or poor, is entitled to have his rights tested by the same general laws which govern others. A supposed pauper is as much entitled to a hearing before he can be consigned to the workhouse, as is any other person whose liberty is threatened.1 A supposed insane person cannot be committed to an asylum against his will without a judicial investigation; 2 nor can a man's property be seized and destroyed, or moved off as a nuisance, at the mere discretion or on the judgment of a ministerial officer.

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Suffrage. Participation in the suffrage is not of right, but it is granted by the State on a consideration of what is most for the interest of the State. Nevertheless, the grant makes it a legal right until it is recalled, and it is protected by the law as property is. In the following chapter the conditions of suffrage and of the holding of office will be noticed.

SECTION V. -JURY TRIAL IN CIVIL CASES.

The Constitution. The seventh amendment provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The right of persons accused of crimes to be tried by jury is secured by another provision, and will be examined in another place.

"The trial by jury," it has been said, "is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment

1 Portland v. Bangor, 65 Me. 120.

2 Van Deusen v. Newcomer, 40 Mich. 90.

3 Fisher v. McGirr, 1 Gray, (Mass.) 1; Darst v. People, 51 Ill. 286; State v. Paul, 5 R. I. 185; Miller v. Burch, 32 Tex. 208.

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upon it has been watched with great jealousy.' The privilege in criminal cases has been looked. upon as a necessary part of the liberties of the people, and a sentiment attaches to it which will scarcely suffer its value to be questioned. Every state constitution preserves it for suits in the state courts, and every new or revised constitution repeats a guaranty of it. Even the common-law requirement of unanimity in the verdict, which is of more than doubtful value, is retained without inquiry or question, because it has existed from time immemorial.

cases.

The tribunal was almost peculiar to the common-law courts, and issues joined in other courts went to a jury only under peculiar circumstances and in exceptional It is important to know, however, that the form of the proceeding will not determine the right of the party to this method of trial. By the common law in this amendment" is meant what the Constitution denominated in the third article 'law'; not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered; or where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit." 2 It is immaterial, therefore, what changes may be made in the forms of action or pleadings, since the nature of the controversy and the right in dispute must determine the privilege, and not the form of remedy provided. But as the amendment only preserves the right, and does not extend it, the privilege is demandable of right only in those cases in which the law gave it before.1

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1 Parsons v. Bedford, 3 Pet. 433, 446.

2 Parsons v. Bedford, 3 Pet. 433, 447.

8 Backus v. Lebanon, 11 N. H. 9; Tabor v. Cook, 15 Mich. 322. 4 Rhines v. Clark, 51 Penn. St. 96.

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