record the company resist having their demand for warehouse rent confined within any limit; and though it does not follow that the rent in fact fixed by them is unreasonable, they do not chuse to insist on its being reasonable, for the purpose of raising the question. For this purpose therefore the question may be taken to be, whether they may claim an unreasonable rent? But though this be private property, yet the principle laid down by Lord Hale attaches upon it, that where private property is affected with a public interest, it ceases to be juris privati only; and in case of its dedication to such a purpose as this, the owners cannot take arbitrary and excessive duties, but the duties must be reasonable. That principle was followed up in the case of Bolt v. Stennett: for there the quay being one of the public quays licensed under the statute of Elizabeth, it was held that the owner was bound to permit the use of the crane upon it, and could not insist either that the public should not use the crane at all, or should use it only upon his own terms, but that he was bound to permit the use of it upon reasonable terms. Whether the company be bound to continue the use of their warehouses for this purpose may hereafter be material to be decided, but no question arises upon that at present: the warehouses are still applied to the purpose, and there was room sufficient to have received these goods at the time; and the only question was whether they were bound to receive them for a reasonable rent: this they refused to do, and in that refusal they were wrong. Le Bane. поли be reasonably fee BAYLEY J. The question is whether the company have a right to impose their own terms, whether reasonable or not, upon the importers of these goods who offered to deposit them in their warehouses upon the terms of the warehousing act? For if so, they might exclude particular individuals from the benefit of the act. Or the question may be stated to be whether the public have not a right under that act to deposit and secure certain goods in the company's warehouses upon reasonable terms, and whether the company be not bound to receive such goods from all the public? Now the act is declared to be passed for the benefit of the trade in general and for the accommodation of the merchants: and it proceeds afterwards to say that it shall be lawful for the importers, &c. (meaning all importers, and not particular individuals of them) to secure their goods of a certain description in the company's warehouses. But according to the argument now urged for the company, the act was not passed for the benefit of all importers, but of such only as chuse to pay the company what they are pleased to demand for warehouse rent; for to this length the argument necessarily goes. It is said however that the company have not a monopoly of this privilege; but I am not aware of any act of parliament which gave the commissioners of the treasury any power to license particular places for the bonding of wines before this act; though I know they had such a power with respect to sugar and coffee. But whether they had it or not, it is sufficient to say that these were the only warehouses where the importer had a right to insist that his goods should be warehoused and bonded; for he certainly could not have obliged the commissioners to license any other place for that purpose. As to the question whether the company may renounce the application of their warehouses to this use, I cannot add to what the Court have already said: but at least they cannot renounce it partially; and I think it would be deluding the public if the company were able to renounce at a moment's warning the warehousing of the goods for this purpose after they had agreed to accept the licence and monopoly. Judgment for the plaintiff.* See the interpretation and application of this case in Attorney-General v. Simpson [1901], 2 Ch. 671, 719, and in Simpson v. Attorney-General [1904], A. Č. 476, 483. "In this case the charter conferred the privilege of driving, not a part, not such portion as the company may choose, but all the logs to be driven. By its acceptance and exclusion of the owner from the privilege, in justice and in law it assumed an obligation corresponding to, and commensurate with its privilege. It accepted the right to drive all the logs, and that acceptance was an undertaking to drive them all, or to use reasonable skill and diligence to accomplish that object. This duty is not one imposed by the charter, certainly not by that alone, but is the result of the defendant's own act; it is its own undertaking; virtually a contract on its part, to accomplish that which it was authorized to do." Weymouth v. Penobscot Log Driving Co. (1880). 71 Me. 29, 39. See also Gordon v. Winchester (Ky., 1826), 12 Bush, 110: New Orleans Gas Light Co. v. Paulding (La., 1845), 12 Rob. 378, 380; Shepard v. Milwaukee Gas Light Co. (1858), 6 Wis. 526, 534; Patterson v. Wollman (1896), 5 N. D. 608, 615. The right to conduct a mill was originally a manorial franchise, and carried with it the duty to charge only a reasonable toll. Seldon Society, Select Pleas in Manorial Courts, Vol. I, p. 47; Hix v. Gardiner (1615), 2 Bulstr. 195: Gard v. Callard (1817), 6 M. & S. 69. See D. D. Storey, "Origin and Monopoly Rights of Ancient Ferries," 63 Pennsylvania L. Rev. 718. AIDING PRIVATE ENTERPRISES THROUGH TAXATION. "The power of government . . . to affect the individual in his private rights of property, whether by exacting contributions to the general means, or by sequestration of specific property, is confined, by obvious implication as well as by express terms, to purposes and objects alone which the government was established to promote, to wit, public uses and the public service. This power, when exercised in one form is taxation; in the other, is designated as the right of eminent domain. The two are diverse in respect of the occasion and mode of exercise, but identical in their source, to wit, the necessities of organized society; and in the end by which alone the exercise of either can be justified, to wit, some public service or use.' Lowell v. Boston (1873), 111 Mass. 454, 462. "But railroads are always held to be built for public use, whether the right to take land, or the right to grant pecuniary aid to them, is considered. . . The building of the subway for the carriage of such passengers as pay the regular fare is therefore for a public use; and it is within the constitutional power of the Legislature to order or sanction taxation for it." Price v. Crocker (1896), 166 Mass. 347, 361. Section 3. LEGISLATION. MUNN v. ILLINOIS 94 U. S. 113. 1876.1 THE Constitution of Illinois, adopted in 1870, contains the following in reference to the inspection of grain, and the storage thereof in public warehouses: ARTICLE XIII.-WAREHOUSES. "Section 1. All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses." "Section 7. The general assembly shall pass laws for the inspection of grain, for the protection of producers, shippers and receivers of grain and produce." An act of the general assembly of Illinois, entitled "An Act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to art. 13 of the Constitution of this State," approved April 25, 1871, provides in the second paragraph of section 15, as follows: "The maximum charge of storage and handling of grain, including the cost of receiving and delivering, shall be for the first thirty days or part thereof two cents per bushel, and for each fifteen days or part thereof, after the first thirty days, one-half of one cent per bushel; provided, however, that grain damp or liable to early damage, as indicated by its inspection when received, may be subject to two cents per bushel storage for the first ten days, and for each additional five days or part thereof, not exceeding one-half of one cent per bushel." MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The question to be determined in this case is whether the general assembly of Illinois can, under the limitations upon the legislative power of the States imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses at Chicago and other places in the State having not less than one hundred thousand inhabitants, "in which grain is stored in bulk, and in which the grain of different owners is mixed 1 The statement of facts has been abridged, parts of MR. CHIEF JUSTICE WAITE'S opinion are omitted, and only one paragraph of MR. JUSTICE FIELD's quite lengthy dissenting opinion is reprinted.-ED. together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved." It is claimed that such a law is repugnant 1. To that part of sect. 8, art. 1, of the Constitution of the United States which confers upon Congress the power "to regulate commerce with foreign nations and among the several States; 66 2. To that part of sect. 9 of the same article which provides that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another;" and 3. To that part of amendment 14 which ordains that no State shall "deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." We will consider the last of these objections first. Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word "deprive," as used in the Fourteenth Amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection. While this provision of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several States of the Union. By the Fifth Amendment, it was introduced into the Constitution of the United States as a limitation upon the powers of the national government, and by the Fourteenth, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the States. When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained for the purposes of government all the powers of the British Parliament, and through their State constitutions, or other forms of social compact, undertook to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions. When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, "is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non lædas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583,"are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things." Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the Fifth Amendment in force, Congress, in 1820, conferred power upon the city of, Washington "to regulate . . . the rates of wharfage at private wharves, . . . the sweeping of chimneys, and to fix the rates of fees therefor, . . . and the weight and quality of bread," 2 3 Stat. 587, sect. 7; and, in 1848, "to make all necessary 2 State regulation of the quality, weight and price of bread upheld in Mobile v. Yuille (1841), 3 Ála. 137, later referred to in the opinion. |