MUNN v. ILLINOIS.

SUPREME COURT OF THE UNITED STATES

94 U.S. 113; 24 L. Ed. 77; 1876 U.S. LEXIS 1842; 4 Otto 113

OCTOBER, 1876 Term

PRIOR HISTORY: [***1]

ERROR to the Supreme Court of the State of Illinois.

OPINIONBY: WAITE

OPINION: [*123] [**83] 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 [***21] 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 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;"

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. [***22]

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 [*124] 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 [***23] 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 [***24] not affected by his relations to others, he

might retain. "A body [**84] 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 [*125] has found

expression in the maxim sic utere tuo ut alienum non loedas. 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 [***25] 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," 3 Stat. 587, sect. 7; and, in 1848, "to make all necessary

regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of

commission of auctioneers," [***26] 9 id. 224, sect. 2.

From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of

the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The

amendment does not change the law in this particular: it simply prevents the States from doing that which will operate as such a deprivation.

This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative

effect. Looking, [*126] then, to the common law, from whence came the right which the Constitution protects, we find that when private property is "affected with a

public interest, it ceases to be juris privati only." This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1

Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public

interest when used in a manner [***27] to make it of public consequence, and affect the community at large. 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 his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.

Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris, 1 Harg. Law Tracts, 6, the king has "a right of franchise or privilege, that no man may set up a

common ferry for all passengers, without a prescription time out of mind, or a charter from the king. He may make a ferry for his own use or the use of his family, but

not for the common use of all the king's subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest

and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz., that it give attendance at due

times, keep a boat in due order, and take but reasonable toll; for [***28] if he fail in these he is finable." So if one owns the soil and landing-places on both banks of a

stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this

because the common good requires that all public ways shall be under the control of the public authorities. This privilege or prerogative of the king, who in this

connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the

general welfare.

[*127] And, again, as to wharves and wharfingers, Lord Hale, in his treatise De Portibus Maris, already cited, says: --

"A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage,

housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own. . . . If the king or subject have a public wharf, unto which all

persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only [***29] licensed by the king, . . . or

because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for

cranage, wharfage, pesage, &c., neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the king's

license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris privati only; as if a man set out a

street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest."

[**85] This statement of the law by Lord Hale was cited with approbation and acted upon by Lord Kenyon at the beginning of the present century, in Bolt v.

Stennett, 8 T.R. 606.

And the same has been held as to warehouses and warehousemen. In Aldnutt v. Inglis, 12 East, 527, decided in 1810, it appeared that the London Dock Company

had built warehouses in which wines were taken in store at such rates of charge as the company and the owners might agree upon. Afterwards the company obtained

authority, under the general [***30] warehousing act, to receive wines from importers before the duties upon the importation were paid; and the question was,

whether they could charge arbitrary rates for such storage, or must be content with a reasonable compensation. Upon this point Lord Ellenborough said (p. 537): --

"There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property, or the use of it; but

if for a particular purpose the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if [*128] he will

take the benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms. The question then is, whether, circumstanced as this

company is, by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of

London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable

compensation for such warehousing. And, according to him, whenever [***31] the accident of time casts upon a party the benefit of having a legal monopoly of

landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined

to take reasonable compensation only for the use of the wharf."

And further on (p. 539): --

"It is enough that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law

attaches, as laid down by Lord Hale in the passage referred to [that from De Portibus Maris already quoted], which includes the good sense as well as the law of the

subject."

And in the same case Le Blanc, J., said (p. 541): --

"Then, admitting these warehouses to be private property, and that the company might discontinue this application of them, or that they might have made what terms

they pleased in the first instance, yet having, as they now have, this monopoly, the question is, whether the warehouses be not private property clothed with a public

right, and, if so, the principle of law attaches upon them. The privilege, then, of bonding these wines being at present [***32] confined by the act of Parliament to the

company's warehouses, is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to

pay an arbitrary but a reasonable rent? But upon this 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 choose 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 [*129] upon it, that when 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."

We have quoted thus largely the words of these eminent expounders of the common law, because, as we think, we find in them the principle which supports the

legislation we are now examining. Of [***33] Lord Hale it was once said by a learned American judge, --

"In England, even on rights of prerogative, they scan his words with as much care as if they had been found in Magna Charta; and the meaning once ascertained, they

do not trouble themselves to search any further." 6 Cow. (N.Y.) 536, note.

In later times, the same principle came under consideration in the Supreme Court of Alabama. That court was called upon, in 1841, to decide whether the power

granted to the city of Mobile to regulate the weight and price of bread was unconstitutional, and it was contended that "it would interfere with the right of the citizen to

pursue his lawful trade or calling in the mode his judgment might dictate;" but the court said, "there is no motive . . . for this interference on the part of the legislature with

the lawful actions of individuals, or the mode in which private property shall be enjoyed, unless such calling affects the public interest, or private property is employed in

a manner which directly affects the body of the people. Upon this principle, in this State, tavern-keepers are licensed; . . . and the Country Court is required, at least

once a year, to settle the rates of innkeepers. [***34] Upon the same principle is founded the control which the legislature has always exercised in the establishment

and regulation of mills, ferries, bridges, turnpike roads, and other kindred subjects." Mobile v. Yuille, 3 Ala. N.S. 140.

From the same source comes the power to regulate the charges of common carriers, which was done in England as long ago as the third year of the reign of William

and Mary, and continued until within a comparatively recent period. And in the first statute we find the following suggestive preamble, to wit: --

[*130] "And whereas divers wagoners and other carriers, by combination amongst themselves, have raised the prices of carriage of goods in many places to

excessive rates, to the great injury of the trade: Be it, therefore, enacted," &c. 3 W. & M. c. 12, § 24; 3 Stat. at Large (Great Britain), 481.

Common carriers exercise a sort of public office, and have duties to perform in which the public is interested. New Jersey Nav. Co. v. Merchants' Bank, 6 How. 382.

Their business is, therefore, "affected with a public interest," within the meaning of the doctrine which Lord Hale has so forcibly stated.

But we need not go further. [***35] Enough has [**86] already been said to show that, when private property is devoted to a public use, it is subject to public

regulation. It remains only to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this

principle.

For this purpose we accept as true the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error. From these it appears that "the

great producing region of the West and North-west sends its grain by water and rail to Chicago, where the greater part of it is shipped by vessel for transportation to

the seaboard by the Great Lakes, and some of it is forwarded by railway to the Eastern ports. . . . Vessels, to some extent, are loaded in the Chicago harbor, and

sailed through the St. Lawerence directly to Europe. . . . The quantity [of grain] received in Chicago has made it the greatest grain market in the world. This business

has created a demand for means by which the immense quantity of grain can be handled or stored, and these have been found in grain warehouses, which are

commonly called elevators, because the grain is elevated [***36] from the boat or car, by machinery operated by steam, into the bins prepared for its reception, and

elevated from the bins, by a like process, into the vessel or car which is to carry it on. . . . In this way the largest traffic between the citizens of the country north and

west of Chicago and the citizens of the country lying on the Atlantic coast north of Washington is in grain which passes through the elevators of Chicago. In this way the

trade in grain is carried on by the inhabitants of seven or eight of the [*131] great States of the West with four or five of the States lying on the sea-shore, and forms

the largest part of inter-state commerce in these States. The grain warehouses or elevators in Chicago are immense structures, holding from 300,000 to 1,000,000

bushels at one time, according to size. They are divided into bins of large capacity and great strength. . . . They are located with the river harbor on one side and the

railway tracks on the other; and the grain is run through them from car to vessel, or boat to car, as may be demanded in the course of business. It has been found

impossible to preserve each owner's grain separate, and this has given rise to [***37] a system of inspection and grading, by which the grain of different owners is

mixed, and receipts issued for the number of bushels which are negotiable, and redeemable in like kind, upon demand. This mode of conducting the business was

inaugurated more than twenty years ago, and has grown to immense proportions. The railways have found it impracticable to own such elevators, and public policy

forbids the transaction of such business by the carrier; the ownership has, therefore, been by private individuals, who have embarked their capital and devoted their

industry to such business as a private pursuit."

In this connection it must also be borne in mind that, although in 1874 there were in Chicago fourteen warehouses adapted to this particular business, and owned by

about thirty persons, nine business firms controlled them, and that the prices charged and received for storage were such "as have been from year to year agreed upon

and established by the different elevators or warehouses in the city of Chicago, and which rates have been annually published in one or more newspapers printed in said

city, in the month of January in each year, as the established rates for the year then [***38] next ensuing such publication." Thus it is apparent that all the elevating

facilities through which these vast productions "of seven or eight great States of the West" must pass on the way "to four or five of the States on the seashore" may be a

"virtual" monopoly.

Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the

cartman, or the [*132] hackney-coachman, pursues a public employment and exercises "a sort of public office," these plaintiffs in error do not. They stand, to use

again the landguage of their counsel, in the very "gateway of commerce," and take toll from all who pass. Their business most certainly "tends to a common charge, and

is become a thing of public interest and use." Every bushel of grain for its passage "pays a toll, which is a common charge," and, therefore, according to Lord Hale,

every such warehouseman "ought to be under public regulation, viz., that he . . . take but reasonable toll." Certainly, if any business can be clothed "with a public

interest, and cease to be juris privati only," this has been. It may not be made so by the operation [***39] of the Constitution of Illinois or this statute, but it is by the

facts.

We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitution in 1870, saw fit to make it the duty of

the general assembly to pass laws "for the protection of producers, shippers, and receivers of grain and produce," art. 13, sect. 7; and by sect. 5 of the same article, to

require all railroad companies receiving and transporting grain in bulk or otherwise to deliver the same at any elevator to which it might be consigned, that could be

reached by any track that was or could be used by such company, and that all railroad companies should permit connections to be made with their tracks, so that any

public werehouse, &c., might be reached by the cars on their railroads. This indicates very clearly that during the twenty years in which this peculiar business had been

assuming its present "immense proportions," something had occurred which led the whole body of the people to suppose that remedies such as are usually employed to

prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state [***40] of facts could exist that would justify

such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of

circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must

presume it did. Of the propriety of legislative [*133] interference within the scope of legislative power, the legislature is the exclusive judge.

Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is [**87] one of recent origin, that

its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and

positive interest. It presents, therefore, a case for the application of a long-known and well-established principle in social science, and this statute simply extends the law

so as to meet this new development of commercial progress. There is no attempt to compel these owners to grant the public an interest in their property, [***41] but

to declare their obligations, if they use it in this particular manner.

It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. What

they did was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities

for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit

themselves to such interference, they should not have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor

of a hackney-carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had purchased his horses and

carriage and established his business before the statute or the ordinance was adopted.

It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is

reasonable is [***42] a judicial and not a legislative question.

As has already been shown, the practice has been otherwise. In countries where the common law prevails, it has been customary from time immemorial for the

legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any

charge made would be unreasonable. [*134] Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, what is reasonable must

be ascertained judicially. But this is because the legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which

legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the

power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which

requires the charge to be reasonable, is itself a regulation as to price. Whthout it the owner could make his rates at will, and compel the public to yield [***43] to his

terms, or forego the use.

But a mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. That

is only 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.

After what has [***44] already been said, it is unnecessary to refer at length to the effect of the other provision of the Fourteenth Amendment which is relied upon,

viz., that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Certainly, it cannot be claimed that this prevents the State from

regulating the fares of hackmen or the [*135] charges of draymen in Chicago, unless it does the same thing in every other place within its jurisdiction. But, as has been

seen, the power to regulate the business of warehouses depends upon the same principle as the power to regulate hackmen and draymen, and what cannot be done in

the one case in this particular cannot be done in the other.

We come now to consider the effect upon this statute of the power of Congress to regulate commerce.

It was very properly said in the case of the State Tax on Railway Gross Receipts, 15 Wall. 293, that "it is not every thing that affects commerce that amounts to a

regulation of it, within the meaning of the Constitution." The warehouses of these plaintiffs in error are situated and their business carried on exclusively within the limits

of the State of Illinois. They are used [***45] as instruments by those engaged in State as well as those engaged in inter-state commerce, but they are no more

necessarily a part of commerce itself than the dray or the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they

may become connected with inter-state commerce, but not necessarily so. Their regulation is a thing of domestic concern, and, cettainly, until Congress acts in

reference to their inter-state relations, the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce

outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own arrairs, has

encroached upon the exclusive domain of Congress in respect to inter-state commerce, but we do say that, upon the facts as they are represented to us in this record,

that has not been done.

The remaining objection, to wit, that the statute in its present form is repugnant to sect. 9, art. 1, of the Constitution of the United States, because it gives preference to

the ports of one State over those of another, may be [***46] disposed of by the single remark that his provision operates only as a limitation of the powers of

[**88] Congress, and in no respect afects the States in the regulation of their domestic affairs.

We conclude, therefore, that the statute in question is not repugnant to the Constitution of the United States, and that [*136] there is no error in the judgment. 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 deliberations.

Judgment affirmed.

MR. JUSTICE FIELD and MR. JUSTICE STRONG dissented.

DISSENTBY: FIELD; STRONG

DISSENT: MR. JUSTICE FIELD. I am compelled to dissent from the decision of the court in this case, and from the reasons upon which that decision is founded.

The principle upon which the opinion of the majority proceeds is, in my judgment, subversive of the rights of private property, heretofore believed to be protected by

constitutional [***47] guaranties against legislative interference, and is in conflict with the authorities cited in its support.

The defendants had constructed their warehouse and elevator in 1862 with their own means, upon ground leased by them for that purpose, and from that time until the

filing of the information against them had transacted the business of receiving and storing grain for hire. The rates of storage charged by them were annually established

by arrangement with the owners of different elevators in Chicago, and were published in the month of January. In 1870 the State of Illinois adopted a new constitution,

and by it "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."

In April, 1871, the legislature of the State passed an act to regulate these warehouses, thus declared to be public, and the warehousing and inspection of grain, and to

give effect to this article of the Constitution. By that act public warehouses, as defined in the Constitution, were divided into three classes, the first of which embraced all

warehouses, elevators, or granaries located in [***48] cities having not less than one hundred thousand inhabitants, in which grain was stored in bulk, and the grain of

different owners was mixed together, or stored in such manner [*137] that the identity of different lots or parcels could not be accurately preserved. To this class the

elevator of the defendants belonged. The act prescribed the maximum of charges which the proprietor, lessee, or manager of the warehouse was allowed to make for

storage and handling of grain, including the cost of receiving and delivering it, for the first thirty days or any part thereof, and for each succeeding fifteen days or any part

thereof; and it required him to procure from the Circuit Court of the county a license to transact business as a public warehouseman, and to give a bond to the people

of the State in the penal sum of $10,000 for the faithful performance of his duty as such warehouseman of the first class, and for his full and unreserved compliance with

all laws of the State in relation thereto. The license was made revocable by the Circuit Court upon a summary proceeding for any violation of such laws. And a penalty

was imposed upon every person transacting business as a public warehouseman [***49] of the first class, without first procuring a license, or continuing in such

business after his license had been revoked, of not less than $100 or more than $500 for each day on which the business was thus carried on. The court was also

authorized to refuse for one year to renew the license, or to grant a new one to any person whose license had been revoked. The maximum of charges prescribed by

the act for the receipt and storage of grain was different from that which the defendants had previously charged, and which had been agreed to by the owners of the

grain. More extended periods of storage were required of them than they formerly gave for the same charges. What they formerly charged for the first twenty days of

storage, the act allowed them to charge only for the first thirty days of storage; and what they formerly charged for each succeeding ten days after the first twenty, the

act allowed them to charge only for each succeeding fifteen days after the first thirty. The defendants, deeming that they had a right to use their own property in such

manner as they desired, not inconsistent with the equal right of others to a like use, and denying the power of the legislature to [***50] fix prioes for the use of their

property, and their services in connection with it, refused to comply with the act by taking out the license and giving the bond required, [*138] but continued to carry

on the business and to charge for receiving and storing grain such prices as they had been accustomed to charge, and as had been agreed upon between them and the

owners of the grain. For thus transacting their business without procuring a license, as required by the act, they were prosecuted and fined, and the judgment against

them was affirmed by the Supreme Court of the State.

The question presented, therefore, is one of the greatest importance, -- whether it is within the competency of a State to fix the compensation which an individual may

receive for the use of his own property in his private business, and for his services in connection with it.

The declaration of the Constitution of 1870, that provate buildings used for private purposes shall be deemed public institutions, does not make them so. The receipt

and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language,

[***51] though used by a constitutional convention, which can change a private business into a public one, or alter the character of the building in which the business

is transacted. A tailor's or a shoemaker's shop would stil retain its private character, even though the assembled wisdom of the State should declare, by organic act or

legislative ordinance, that such a place was a public workshop, and that the workmen were public tailors or public shoemakers. One might as well attempt to change

the nature of colors, by giving them a new designation. The defendants were no more public warehousemen, as justly observed by counsel, than the merchant who sells

his merchandise to the public is a public [**89] merchant, or the blacksmith who shoes horses for the public is a public blacksmith; and it was a strange notion that by

calling them so they would be brought under legislative control.

The Supreme Court of the State -- divided, it is true, by three to two of its members -- has held that this legislation was a legitimate exercise of State authority over

private business; and the Supreme Court of the United States, two only of its members dissenting, has decided that there is nothing [***52] in the Constitution of the

United States, or its recent amendments, which impugns its validity. It is, therefore, with diffidence I presume to question the soundness of the decision.

[*139] The validity of the legislation was, among other grounds, assailed in the State court as being in conflict with that provision of the State Constitution which

declares that no person shall be deprived of life, liberty, or property without due process of law, and with that provision of the Fourteenth Amendment of the Federal

Constitution which imposes a similar restriction upon the action of the State. The State court held, in substance, that the constitutional provision was not violated so long

as the owner was not deprived of the title and possession of his property; and that it did not deny to the legislature the power to make all needful rules and regulations

respecting the use and enjoyment of the property, referring, in support of the position, to instances of its action in prescribing the interest on money, in establishing and

regulating public ferries and public, mills, and fixing the compensation in the shape of tolls, and in delegating power to municipal bodies to regulate the [***53] charges

of hackmen and draymen, and the weight and price of bread. In this court the legislation was also assailed on the same ground, our jurisdiction arising upon the clause

of the Fourteenth Amendment, ordaining that no State shall deprive any person of life, liberty, or property without due process of law. But it would seem from it opinion

that the court holds that property loses something of its private character when employed in such a way as to be generally useful. The doctrine declared is that property

"becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large;" and from such clothing the right of

the legislature is duduced to control the use of the property, and to determine the compensation which the owner may receive for it. When Sir Matthew Hale, and the

sages of the law in his day, spoke of property as affected by a public interest, and ceasing from that cause to be juris privati solely, that is, ceasing to be held merely in

private right, they referred to property dedicated by the owner to public uses, or to property the use of which was granted by the government, or in connection with

which [***54] special privileges were conferred. Unless the property was thus dedicated, or some right bestowed by the government was hepd with the property,

either by specific grant or by prescription of so long a time as [*140] to imply a grant originally, the property was not affected by any public interest so as to be taken

out of the category of property held in private right. But it is not in any such sense that the terms "clothing property with a public interest" are used in this case. From the

nature of the business under consideration -- the storage of grain -- which, in any sense in which the words can be used, is a private business, in which the public are

interested only as they are interested in the storage of other products of the soil, or in articles of manufacture, it is clear that the court intended to declare that, whenever

one devotes his property to a business which is useful to the public, -- "affects the community at large," -- the legislature can regulate the compensation which the owner

may receive for its use, and for his own services in connection with it. "When, therefore," says the court, "one devotes his property to a use in which the public has an

interest, [***55] 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 his grant by discontinuing the use; but, so long as he mamtains the use, he must submit to the control." The building used

by the defendants was for the storage of grain: in such storage, says the court, the public has an interest; therefore the defendants, by devoting the building to that

storage, have granted the public an interest in that use, and must submit to have their compensation regulated by the legislature.

If this be sound law, if there be no protection, either in the principles upon which our republican government is founded, or in the prohibitions of the Constitution against

such invasion of private rights, all property and all business in the State are held at the mercy of a majority of its legislature. The public has no greater interest in the use

of buildings for the storage of grain than it has in the use of buildings for the residences of families, nor, indeed, any thing like so great an interest; and, according to the

doctrine announced, the legislature may fix the [***56] rent of all tenements used for residences, without reference to the cost of their erection. If the owner does not

like the rates prescribed, he may cease renting his houses. He has granted to the public, says the court, an interest in the use of the [*141] buildings, and "he may

withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control." The public is interested in the manufacture of cotton,

woollen, and silken fabrics, in the construction of machinery, in the printing and publication of books and periodicals, and in the making of utensils of every variety,

useful and ornamental; indeed, there is hardly an enterprise or business engaging the attention and labor of any considerable portion of the community, in which the

public has not an interest in the sense in which that term is used by the court in its opinion; and the doctrine which allows the legislature to interfere with and regulate the

charges which the owners of property thus, employed shall make for its use, that is, the rates at which all these different kinds of business shall be carried on, has never

before been asserted, so far as I am aware, by any judicial [***57] tribunal in the United States.

The doctrine of the State court, that no one is deprived of his property, within the meaning of the constitutional inhibition, so long as he retains its title and possession,

and the doctrine of this court, that, whenever one's property is [**90] used in such a manner as to affect the community at large, it becomes by that fact clothed with a

public interest, and ceases to be juris privati only, appear to me to destroy, for all useful purposes, the efficacy of the constitutional guaranty. All that is beneficial in

property arises from its use, and the fruits of that use; and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession.

If the constitutional guaranty extends no further than to prevent a deprivation of title and possession, and allows a deprivation of use, and the fruits of that use, it does

not merit the encomiums it has received. Unless I have misread the history of the provision now incorporated into all our State constitutions, and by the Fifth and

Fourteenth Amendments into our Federal Constitution, and have misunderstood the interpretation it has received, it is not [***58] thus limited in its scope, and thus

impotent for good. It has a much more extended operation than either court, State, or Federal has given to it. The provision, it is to be observed, places property under

the same protection as life and liberty. Except by due process of law, no State can [*142] deprive any person of either. The provision has been supposed to secure to

every individual the essential conditions for the pursuit of happiness; and for that reason has not been heretofore, and should never be, construed in any narrow or

restricted sense.

No State "shall deprive any person of life, liberty, or property without due process of law," says the Fourteenth Amendment to the Constitution. By the term "life," as

here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the

body through which the soul communicates with the outer world. The deprivation not only of life, but of whatever God has given [***59] to every one with life, for its

growth and enjoyment, is prohibited by the provision in question, if its efficacy be not frittered away by judicial decision.

By the term "liberty," as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go

where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; that

is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment.

The same liberal construction which is required for the protection of life and liberty, in all particulars in which life and liberty are of any value, should be applied to the

protection of private property. If the legislature of a State, under pretence of providing for the public good, or for any other reason, can determine, against the consent

of the owner, the uses to which private property shall be devoted, or the prices which the owner shall receive for its uses, it can deprive him of the property as

completely as by a special act for its confiscation or destruction. [***60] If, for instance, the owner is prohibited from using his building for the purposes for which it

was designed, it is of little consequence that he is permitted to retain the [*143] title and possession; or, if he is compelled to take as compensation for its use less than

the expenses to which he is subjected by its ownership, he is, for all practical purposes, deprived of the property, as effectually as if the legislature had ordered his

forcible dispossession. If it be admitted that the legislature has any control over the compensation, the extent of that compensation becomes a mere matter of legislative

discretion. The amount fixed will operate as a partial destruction of the value of the property, if it fall below the amount which the owner would obtain by contract, and,

practically, as a complete destruction, if it be less than the cost of retaining its possession. There is, indeed, no protection of any value under the constitutional provision,

which does not extend to the use and income of the property, as well as to its title and possession.

This court has heretofore held in many instances that a constitutional provision intended for the protection of rights of private [***61] property should be liberally

construed. It has so held in the numerous cases where it has been called upon to give effect to the provision prohibiting the States from legislation impairing the

obligation of contracts; the provision being construed to secure from direct attack not only the contract itself, but all the essential incidents which give it value and enable

its owner to enforce it. Thus, in Bronson v. Kinzie, reported in the 1st of Howard, it was held that an act of the legislature of Illinois, giving to a mortgagor twelve

months within which to redeem his mortgaged property from a judicial sale, and prohibiting its sale for less than two-thirds of its appraised value, was void as applied to

mortgages executed prior to its passage. It was contended, in support of the act, that it affected only the remedy of the mortgagee, and did not impair the contract; but

the court replied that there was no substantial difference between a retrospective law declaring a particular contract to be abrogated and void, and one which took

away all remedy to enforce it, or incumbered the remedy with conditions that rendered it useless or impracticable to pursue it. And, referring [***62] to the

constitutional provision, the court said, speaking through Mr. Chief Justice Taney, that "it would be unjust to the memory of the distinguished men who framed it, to

suppose that it was designed to protect a mere barren and [*144] abstract right, without any practical operation upon the business of life. It was undoubtedly adopted

as a part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout this Union, by

placing them under the protection of the Constitution of the United States. And it would but ill become this court, under any circumstances, to depart from the plain

meaning of the words used, and to sanction a distinction between the right and the remedy, which would render this provision illusive and nugatory, mere words of

from, affording no protection and producing no practical result."

And in Pumpelly v. Green Bay Company, 13 Wall. 177, the language of the court is equally emphatic. That case arose in Wisconsin, the constitution of [**91]

which declares, like the constitutions of nearly all the States, that private property shall not be taken for public [***63] use without just compensation; and this court

held that the flooding of one's land by a dam constructed across a river under a law of the State was a taking within the prohibition, and required compensation to be

made to the owner of the land thus flooded. The court, speaking through Mr. Justice Miller, said: --

"It would be a very curious and unsatisfactory result, if, in construing a provision of constitutional law, always understood to have been adopted for protection and

security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators, as placing the just

principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the government refrains from the

absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect,

subject it to total destruction without making any compensation, because, in the narrowest sense of the word, it is not taken for the public use. Such a construction

would pervert the constitutional [***64] provision into a restriction on the rights of the citizen, as those rights stood at the common law, instead of the government,

and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors."

[*145] The views expressed in these citations, applied to this case, would render the constitutional provision invoked by the defendants effectual to protect them in the

uses, income, and revenues of their property, as well as in its title and possession. The construction actually given by the State court and by this court makes the

provision, in the language of Taney, a protection to "a mere barren and abstract right, without any practical operation upon the business of life," and renders it "illusive

and nugatory, mere words of form, affording no protection and producing no practical result."

The power of the State over the property of the citizen under the constitutional guaranty is well defined. The State may take his property for public uses, upon just

compensation being made therefor. It may take a portion of his property by way of taxation for the support of the government. It may control [***65] the use and

possession of his proerty, so far as may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property. The

doctrine that each one must so use his own as not to injure his neighbor -- sic utere tuo ut alienum non loedas -- is the rule by which every member of society must

possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of State authority. Except in cases where

property may be destroyed to arrest a conflagration or the ravages of pestilence, or be taken under the pressure of an immediate and overwhelming necessity to

prevent a public calamity, the power of the State over the property of the citizen does not extend beyond such limits.

It is true that the legislation which secures to all protection in their rights, and the equal use and enjoyment of their property, embraces an almost infinite variety of

subjects. Whatever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject

to the restrictions which such legislation imposes. What [***66] is termed the police power of the State, which, from the language often used respecting it, one would

suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals in their intercourse with each other, and in the

use of their property, so far [*146] as may be required to secure these objects. The compensation which the owners of property, not having any special rights or

privileges from the government in connection with it, may demand for its use, or for their own services in union with it, forms no element of consideration in prescribing

regulations for that purpose. If one construct a building in a city, the State, or the municipality exercision a delegated power from the State, may require its walls to be

of sufficient thickness for the uses intended; it may forbid the employment of inflammable materials in its construction, so as not to endanger the safety of his neighbors;

if designed as a theatre, church, or public hall, it may prescribe ample means of egress, so as to afford facility for escape in case of accident; it may forbid the storage in

it of powder, nitro-glycerine, or other explosive material; it may require [***67] its occupants daily to remove decayed vegetable and animal matter, which would

otherwise accumulate and engender disease; it may exclude from it all occupations and business calculated to disturb the neighborhood or infect the air. Indeed, there is

no end of regulations with respect to the use of property which may not be legitimately prescribed, having for their object the peace, good order, safety, and health of

the community, thus securing to all the equal enjoyment of their property; but in establishing these regulations it is evident that compensation to the owner for the use of

his property, or for his services in union with it, is not a matter of any importance: whether it be one sum or another does not affect the regulation, either in respect to its

utility or mode of enforcement. One may go, in like manner, through the whole round of regulations authorized by legislation, State or municipal, under what is termed

the police power, and in no instance will he find that the compensation of the owner for the use of his property has any influence in establishing them. It is only where

some right or privilege is conferred by the government or municipality upon the owner, which [***68] he can use in connection with his property, or by means of

which the use of his property is rendered more valuable to him, or he thereby enjoys an advantage over others, that the compensation to be received by him becomes a

legitimate matter of regulation. Submission to the regulation of compensation in such cases is an implied condition [*147] of the grant, and the State, in exercising its

power of prescribing the compensation, only determines the conditions upon which its concession shall be enjoyed. When the privilege ends, the power of regulation

ceases.

Jurists and writers on public law find authority [**92] for the exercise of this police power of the State and the numerous regulations which it prescribes in the doctrine

already stated, that every one must use and enjoy his property consistently with the rights of others, and the equal use and enjoyment by them of their property. "The

police power of the State," says the Supreme Court of Vermont, "extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the

protection of all property in the State. According to the maxim, sic utere tuo ut alienum non loedas, which, being [***69] of universal application, it must, of

course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." Thorpe v.

Rutland &c Burlington Railroad Co., 27 Vt. 149. "We think it a settled principle growing out of the nature of well-ordered civil society," says the Supreme Court of

Massachusetts, "that every holder of property, however abosolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be

injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community."

Commonwealth v. Alger, 7 Cush. 84. In his Commentaries, after speaking of the protection afforded by the Constitution to private property, Chancellor Kent says: --

"But though property be thus protected, it is still to be understood that the law-giver has the right to prescribe the mode and manner of using it, so far as may be

necessary to prevent the abuse of the right, to the injury or annoyance of others, or of the public. The government may, by general regulations, interdict such

uses of property [***70] as would create nuisances and become dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades,

slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and

the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, [*148] on the general and rational principle that every person

ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. 2

Kent, 340.

The Italics in these citations are mine. The citations show what I have already stated to be the case, that the regulations which the State, in the exercise of its police

power, authorizes with respect to the use of property are entirely independent of any question of compensation for such use, or for the services of the owner in

connection with it.

There is nothing in the character of the business of the defendants as warehousemen which called for the interference complained of in this case. Their buildings are not

nuisances; their occupation of receiving [***71] and storing grain infringes upon no rights of others, disturbs no neighborhood, infects not the air, and in no respect

prevents others from using and enjoying their property as to them may seem best. The legislation in question is nothing less than a bold assertion of absolute power by

the State to control at its discretion the property and business of the citizen, and fix the compensation he shall receive.The will of the legislature is made the condition

upon which the owner shall receive the fruits of his property and the just reward of his labor, industry, and enterprise. "That government," says Story, "can scarcely be

deemed to be free where the rights of property are left solely dependent upon the will of a legislative body without any restraint. The fundamental maxims of a free

government seem to require that the rights of personal liberty and private property should be held sacred." Wilkeson v. Leland, 2 Pet. 657. The decision of the court in

this case gives unrestrained license to legislative will.

The several instances mentioned by counsel in the argument, and by the court in its opinion, in which legislation has fixed the compensation which parties may receive

[***72] for the use of their property and services, do not militate against the views I have expressed of the power of the State over the property of the citizen. They

were mostly cases of public ferries, bridges, and turnpikes, of wharfingers, hackmen, and draymen, and of interest on money. In all these cases, except that of interest

on money, which I shall presently notice, there was some special [*149] privilege granted by the State or municipality; and no one, I suppose, has ever contended that

the State had not a right to prescribe the conditions upon which such privilege should be enjoyed. The State in such cases exercises no greater right than an individual

may exercise over the use of his own property when leased or loaned to others. The conditions upon which the privilege shall be enjoyed being stated or implied in the

legislation authorizing its grant, no right is, of course, impaired by their enforcement. The recipient of the privilege, in effect, stipulates to comply with the conditions. It

matters not how limited the privilege conferred, its acceptance implies an assent to the regulation of its use and the compensation for it. The privilege which the hackman

and drayman [***73] have to the use of stands on the public streets, not allowed to the ordinary coachman or laborer with teams, constitutes a sufficient warrant for

the regulation of their fares. In the case of the warehousemen of Chicago, no right or privilege is conferred by the government upon them; and hence no assent of theirs

can be alleged to justify any interference with their charges for the use of their property.

The quotations from the writings of Sir Matthew Hale, so far from supporting the positions of the court, do not recognize the interference of the government, even to the

extent which I have admitted to be legitimate. They state merely that the franchise of a public ferry belongs to the king, and cannot be used by the subject except by

license from him, or prescription time out of mind; and that when the subject has a public wharf by license from the king, or from having dedicated his private wharf to

the public, as in the case of a street opened by him through his own land, he must allow the use of the wharf for reasonable and moderate charges. Thus, in the first

quotation which is taken from his treatise De Jure Maris, Hale says that the king has "a right of franchise or [***74] privilege, that no man may set up a common ferry

for all passengers without a prescription time out of mind or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the

[**93] common use of all the king's subjects passing that way; because it doth in consequent tend to a common charge, and is become a thing of public interest and

use, and every man for his passage [*150] pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz., that it give attendance at

due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable." Of course, one who obtains a license from the king to establish a

public ferry, at which "every man for his passage pays a toll," must take it on condition that he charge only reasonable toll, and, indeed, subject to such regulations as

the king may prescribe.

In the second quotation, which is taken from his treatise De Protibus Maris, Hale says: --

"A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage,

housellage, [***75] pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own. If the king or subject have a public wharf, unto

which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharves only licensed by the king, or

because there is no other wharf in that port, as it may fall out where a port is newly erected, in that case there cannot be taken arbitrary and excessive duties for

cranage, wharfage, pesage, &c.; neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the king's

license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris privati only; as if a man set out a

street in new building on his own land, it is now no longer bare private interest, but is affected by the public interest."

The purport of which is, that if one have a public wharf, by license from the government or his own dedication, he must exact only reasonable compensation for its use.

By its dedication to public use, a wharf is as much brought under the common-law rule of subjection [***76] to reasonable charges as it would be if originally

established or licensed by the crown. All property dedicated to public use by an individual owner, as in the case of land for a park or street, falls at once, by force of

the dedication, under the law governing property appropriated by the government for similar purposes.

I do not doubt the justice of the encomiums passed upon Sir [*151] Matthew Hale as a learned jurist of his day; but I am unable to perceive the pertinency of his

observations upon public ferries and public wharves, found in his treatises on "The Rights of the Sea" and on "The Ports of the Sea," to the questions presented by the

warehousing law of Illinois, undertaking to regulate the compensation received by the owners of private property, when that property is used for private purposes.

The principal authority cited in support of the ruling of the court is that of Alnutt v. Inglis, decided by the King's Bench, and reported in 12 East. But that case, so far

from sustaining the ruling, establishes, in my judgment, the doctrine that every one has a right to charge for his property, or for its use, whatever he pleases, unless he

enjoys in connection [***77] with it some right or privilege from the government not accorded to others; and even then it only decides what is above stated in the

quotations from Sir Matthew Hale, that he must submit, so long as he retains the right or privilege, to reasonable rates. In that case, the London Deck Company, under

certain acts of Parliament, possessed the exclusive right of receiving imported goods into their warehouses before the duties were paid; and the question was whether

the company was bound to receive them for a reasonable reward, or whether it could arbitrarily fix its compensation. In deciding the case, the Chief Justice, Lord

Ellenborough, said: --

"There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property, or the use of it; but

if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the

benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms."

And, coming to the conclusion that the company's warehouses were invested with "the monopoly [***78] of a public privilege," he held that by law the company must

confine itself to take reasonable rates; and added, that if the crown should thereafter think it advisable to extend the privilege more generally to other persons and

places, so that the public would not be restrained from exercising a choice of warehouses for the purpose, the company might be enfranchised from the restriction

which [*152] attached to a monopoly; but, so long as its warehouses were the only places which could be resorted to for that purpose, the company was bound to let

the trade have the use of them for a reasonable hire and reward. The other judges of the court placed their concurrence in the decision upon the ground that the

company possessed a legal monopoly of the business, having the only warehouses where goods imported could be lawfully received without previous payment of the

duties. From this case it appears that it is only where some privilege in the bestowal of the government is enjoyed in connection with the property, that it is affected with

a public interest in any proper sense of the terms. It is the public privilege conferred with the use of the property which creates the public interest [***79] in it.

In the case decided by the Supreme Court of Alabama, where a power granted to the city of Mobile to license bakers, and to regulate the weight and price of bread,

was sustained so far as regulating the weight of the bread was concerned, no question was made as to the right to regulate the price. 3 Ala. 137. There is no doubt of

the competency of the State to prescribe the weight of a loaf of bread, as it may declare what weight shall constitute a pound or a ton. But I deny the power of any

legislature under our government to fix the price which one shall receive for his property of any kind. If the power can be exercised as to one article, it may as to all

articles, and the prices of every thing, from a calico gown to a city mansion, may be the subject of legislative direction.

Other instances of a similar character may, no doubt, be cited of attempted legislative interference with the rights of property. The act of Congress of 1820, mentioned

by the court, is one of them. There Congress undertook to confer upon the city of Washington power to regulate the rates of wharfage at private wharves, and the fees

for sweeping chimneys. Until some authoritative adjudication [***80] is had upon these and similar provisions, I must adhere, notwithstanding the legislation, to my

opinion, that those who own property have the right to fix the compensation at which they will allow its use, and that those who control services have a right to fix the

compensation at which they will be rendered. The chimney-sweeps may, I think, safely claim all the compensation which [*153] they can obtain by bargain for their

work. In the absence of any contract for property or services, the law allows only a reasonable price or compensation; but what is a reasonable price in any case will

depend upon a variety of considerations, and is not a matter for legislative determination.

The practice of regulating by legislation the interest receivable for the use of money, when considered with reference to its origin, is only the assertion of a right of the

government to control the extent to which a privilege granted by it may be exercised and enjoyed. By the ancient common law it was unlawful to take any money for the

use of money: all who did so were called usurers, a term of great reproach, and were exposed to the censure of the church; and if, after the death of a person, it

[***81] was discovered that he had been a usurer whilst living, his chattels were forfeited to the king, and his lands escheated to the lord of the fee. No action could

be maintained on any promise to pay for the use of money, because of the unlawfulness of the contract. Whilst the common law thus condemned all usury, Parliament

interfered, and made it lawful to take a limited amount of interest. It was not upon the theory that the legislature could arbitrarily fix the compensation which one could

receive for the use of property, which, by the general law, was the subject of hire for compensation, that Parliament acted, but in order to confer a privilege which the

common law denied. The reasons which led to this legislation originally have long since ceased to exist; and if the legislation is still persisted in, it is because a long

acquiescence in the exercise of a power, especially when it was rightfully assumed in the first instance, is generally received as sufficient evidence of its continued

lawfulness. 10 Bac. Abr. 264. n1

n1 The statute of 13 Eliz. c. 8, which allows ten per cent interest, recites "that all usury, being forbidden by the law of God, is sin, and detestable;" and the statute of 21

James the First, reducing the rate to eight per cent, provided that nothing in the law should be "construed to allow the practice of usury in point of religion or

conscience," -- a clause introduced, it is said, to satisfy the bishops, who would not vote for the bill without it. [***82]

There were also recognized in England, by the ancient common law, certain privileges as belonging to the lord of the manor, which grew out of the state of the country,

the condition of the people, and the relation existing between him and [*154] his tenants under the feudal system. Among these was the right of the lord to compel all

the tenants within his manor to grind their corn at his mill. No one, therefore, could set up a mill except by his license, or by the license of the crown, unless he claimed

the right by prescription, which presupposed a grant from the lord or crown, and, of course, with such license went the right to regulate the tolls to be

received.Woolrych on the Law of Waters, c. 6, of Mills. Hence originated the doctrine which at one time obtained generally in this country, that there could be no mill

to grind corn for the public, without a grant or license from the public authorities. It is still, I believe, asserted in some States. This doctrine being recognized, all the rest

followed. The right to control the toll accompanied the right to control the establishment of the mill.

It requires no comment to point out the radical differences between the [***83] cases of public mills and interest on money, and that of the warehouses in Chicago.

No prerogative or privilege of the crown to establish warehouses was ever asserted at the common law. The business of a warehouseman was, at common law, a

private business, and is so in its nature. It has no special privileges connected with it, nor did the law ever extend to it any greater protection than it extended to all other

private business.No reason can be assigned to justify legislation interfering with the legitimate profits of that business, that would not equally justify an intermeddling with

the business of every man in the community, so soon, at least, as his business became generally useful.

I am of opinion that the judgment of the Supreme Court of Illinois should be reversed.

MR. JUSTICE STRONG. When the judgment in this case was announced by direction of a majority of the court, it was well known by all my brethren that I did not

concur in it. It had been my purpose to prepare a dissenting opinion, but I found no time for the preparation, and I was reluctant to dissent in such a case without stating

my reasons. Mr. Justice Field has now stated them as fully as I can, and I [***84] concur in what he has said.