Munn v. Illinois, 94 U.S. 113

the different grades of grain shipped m separa p. 115mixed with inferior or superior grades, without the consent of the owner or consignor thereof.

e general assembly, that public warehouses, as p. 116defined in art. 13 of the Constitution of this State, shall be divided into three classes, to be designated as classes A, B, and C, respectively.

« Sec t . 5. Any person who shall transact the bu lie warehouse of class A without first procuring a license p. 117provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse), shall, on conviction, be fined in a sum not less than $100 for each and every day such business is so carried on; and the court may refuse to renew any license, or grant a new one to any of the persons whose license has been revoked, within one year from the time the same was revoked.”

om t e Circuit Court of said county, permitting them p. 118to transact business as public warehousemen, under the laws of the State.

P on within its jurisdiction the equal protection of p. 120the laws: 5 Webster’s Works, 487 ; Coke’s Inst. 46-50; Murray's Lessee v. Hoboken Land and Imp. Co., 18 How. 272; Hoke v. Henderson, 4 Dev. (N. C.) 15; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 393; Cooley on Const. Lim. 351 et seq.; Pumpelly s. Green Bay Co., 13 Wall. 166; Sinnickson s. Johnson, 2 Harr. (N. J.) 129; Gardner n . Newburgh, 2 Johns. Ch. 162; also cases cited in note, 13 Wall. 179; Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; Cooley on Const. Lim. 290; Walker v. Whitehead, 16 Wall. 314; Rowley v. Hooker, 21 Ind. 144; Ogdens. Saunders, 12 Wheat. 259; Willard v. Longstreet, 2 Doug. (Mich.) 172; Gantly's Lessee v. Ewing, 3 How. 707; and are not within the limits of the police power of the State: 4 Black. Com. 162; Bentham (Edin, ed.), part ix. 157; Cooley on Const. Lim. 572, 577; Thorpe v. I. $ M. Railroad Co., 27 Vt. 149; Com. v. Alger, 7 Cush. 84 ; 2 Kent, Com. 340; People v. I. M. Railroad Co., 9 Mich. 307; Lake View v. Rosehill Cem. Co., 6 Chicago Legal News, 120; Benson s. Mayor, 10 Barb. 245; Vanderbilt s. Adams, 7 Cow. (N. Y.) 449; Brooms Legal Maxims, 357.

duties to perform. X J. Steam Nav. Co. x. Merchants’ p. 122Bank, 6 How. 344; Sanford v. Railroad Company, 24 Penn. St. 381; Coggs v. Bernard, 2 Ld. Raym. 909; C. $ N. W. Railroad Co. v. The People, 56 Ill. 377.

g Charta, and, in substance if not in form, in p. 124nearly 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 sue as have been delegated to the United States or reserved by t e people. The reservations by the people are shown in the prohibitions of the constitutions. f^When one becomes a member of society, he necessarily pa s with some rights or privileges which, as an individua n affected by his relations to others, he might retain. “A bo y politic,” as aptly defined in the preamble of the Constituíli o Massachusetts, “ is a social compact by which the who e p P covenants with each citizen, and each citizen wit t e people, that all shall be governed by certain laws for e mon good.” This does not confer power upon the who e p pie to control rights which are purely and exclusive y pn • Thorpe. R. ¿ B. Railroad Co., 27 Vt. 143; the establishment of laws requiring each citizen to so himself, and so use his own property, as not injure another. This is the very essence of govern p. 125has found expression in the maxim sic utere tuo ut alienum non lœdas. 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 'lime immemorial, and in this country from its first colonization, i 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 quaity of bread, 3 Stat. 587, sect. 7 ; and, in 1848, “to make a necessary regulations respecting hackney carriages and the

1 m and what without its operative effect. Look- p. 126ing, 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 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.

m, an he have a monopoly in them for that purpose, if p. 128he 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 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.”

“ Then, admitting these warehouses to be private property, an that the company might discontinue this application of them, or that they might have made what terms they pleased in the is instance, yet having, as they now have, this monopoly, the questio is, whether the warehouses be not private property clothe ^it public right, and, if so, the principle of law attaches upon t em. The privilege, then, of bonding these wines being at presen fined by the act of Parliament to the company’s warehouses, is not the privilege of the public, and shall not that whic is or good of the public attach on the monopoly, that they sha no bound to pay an arbitrary but a reasonable rent. u upo record the company resist having their demand for ware oi confined within any limit; and, though it does not o °w t0 rent in fact fixed by them is unreasonable, they 0 no _ insist on its being reasonable for the purpose o raismi tion. For this purpose, therefore, the question may be whether they may claim an unreasonable ren . » attaches private property, yet the principle laid down by Lord Hale attac p. 129upon it, that when private property is affected with a public interest it ceases to \>e 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.”

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 t e Great Lakes, and some of it is forwarded by railway to the Eastern ports. . . . Vessels, to some extent, are loade in the Chicago harbor, and sailed through the St. Lawrence directly to Europe. . . . The quantity [of grain], receive Chicago has made it the greatest grain market in ’ This business has created a demand for means by w ic immense quantity of grain can be handled or stored, an have been found in grain warehouses, which are common called elevators, because the grain is elevated from t e oa car, by machinery operated by steam, into the ins PreP^ for its reception, and elevated from the. bins, by a i e F ’ into the vessel or car which is to carry it on. . . • n the largest traffic between the citizens of the country n west of Chicago and the citizens of the country lying Atlantic coast north of Washington is ingrain w through the elevators of Chicago. In this way grain is carried on by the inhabitants of seven or eight p. 131great 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 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, t erefore, been by private individuals, who have embarked t eir capital and devoted their industry to such business as a private pursuit.”

e wharfinger, or the baker, or the cartman, or the p. 132hackney-coachman, pursues a public employment and exercises “ a sort of public office,” these plaintiffs in error do not. They stand, to use again the language 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 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 cou be reached by any track that was or could be used by sue company, and that all railroad companies should permit con nections to be made with their tracks, so that any public war house, &c., might be reached by the cars on their rai roa s. This indicates very clearly that during the twenty years in which this peculiar business had been assuming its P1®8® “ immense proportions,” something had occurred whic e whole body of the people to suppose that remedies sue as are usually employed to prevent abuses by virtual monopo i might not be inappropriate here. For our purposes we assume that, if a state of facts could exist that would J 7 such legislation, it actually did exist when the statut under consideration was passed. For us the ques i°n power, not of expediency. If no state of circumsi an exist to justify such a statute, then we may ecare because in excess of the legislative power of the 3 ate B it could, we must presume it did. Of the propriety of leg^ p. 133Oct. 1876.] Munn v . Ill inois .*1löu Q9

y n which any charge made would be unreason- p. 134able. 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. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use.

After what has already been said, it is unnecessary 0 at length to the effect of the other provision of the Four Amendment which is relied upon, viz., that no a , “ deny to any person within its jurisdiction t e e<lua y tion of the laws.” Certainly, it cannot be elaunedI prevents the State from regulating the fares o c p. 135charges 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.

o the Constitution of the United States, and that p. 136there 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.

. . & p. 137that 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 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 w ose 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

ng out the license and giving the bond required, p. 138but 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.

y specific grant or by prescription of so long a time as p. 140to 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, 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.” 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 founde , 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 interes , and, according to the doctrine announced, the legislature may fix the rent of all tenements used for residences, without re er ence to the cost of their erection. If the owner does not J e the rates prescribed, he may cease renting his houses. He as granted to the public, says the court, an interest in the use o p. 141buildings, 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 tribunal in the United States.

an iberty. Except by due process of law, no State can p. 142deprive 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.

The same liberal construction which is required for the pro* tection of life and liberty, in all particulars in which life an liberty are of any value, should be applied to the protection o 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 w private property shall be devoted, or the prices which owner shall receive for its uses, it can deprive him of the Pr0P erty as completely as by a special act for its confiscation destruction. If, for instance, the owner is prohibits using his building for the purposes for which it was des^>n^ it is of little consequence that he is permitted to retain p. 143title 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.

»speaking through Mr. Chief Justice Taney, that “it would it to U8^ memory the distinguished men who framed ’ ° suppose that it was designed to protect a mere barren and p. 144abstract 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 form, affording no protection and producing no practical result.”

6 with each other, and in the use of their property, so far p. 146as 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 exercising 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 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 ^un‘ of regulations authorized by legislation, State or municipa, under what is termed the police power, and in no instance wi he find that the compensation of the owner for the use of is property has any influence in establishing them. It is on y where some right oi privilege is conferred by the governme or municipality upon the owner, which he can use in connection with his property, or by means of which the use of his proper y is rendered more valuable to him, or he thereby enjoys an advantage over others, that the compensation to be receive ^y him becomes a legitimate matter of regulation. Submission the regulation of compensation in such cases is an imp ie p. 147dition 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.

ya e interdicted by law, in the midst of dense masses of pop- p. 148ulation, 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 several instances mentioned by counsel in the argument, and by the court in its opinion, in which legislation has fixe the compensation which parties may receive for the use of then1 property and services, do not militate against the views I have expressed of the power of the State over the property of t ® citizen. They were mostly cases of public ferries, bridges, an turnpikes, of wharfingers, hackmen, and draymen, and of inter est on money. In all these cases, except that of interes o money, which I shall presently notice, there was some specia p. 149privilege 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 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.

a pu lie interest and use, and every man for his passage p. 150pays 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.

I do not doubt the justice of the encomiums passed upon p. 151Matthew 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.

er persons and places, so that the public would not be reained from exercising a choice of warehouses for the purpose, e company might be enfranchised from the restriction which p. 152attached 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 in it.

Other instances of a similar character may, no doubt, ® 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 o wharfage at private wharves, and the fees for sweeping chim neys. Until some authoritative adjudication is had upon these and similar provisions, I must adhere, notwithstanding the eg islation, to my opinion, that those who own property have t right to fix the compensation at which they will allow its use, and that those who control services have a right to fix the com pensation at which they will be rendered. The chimn y sweeps may, I think, safely claim all the compensation w p. 153they 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.