
    Supreme Court-General Term-Second Department.
    
      October, 1888.
    In the Matter of ANNAN. In the Matter of PINTO.
    Constitutional Law.—The Grain Elevator Act.—L. 1888, ch. 581.—The Police Power.
    The statute (Laws 1888, chap. 581) regulating the maximum charge for elevating, receiving, weighing and discharging, etc., grain by means of floating and stationary elevators and warehouses in this State, is constitutional.
    Property used in handling and storing the great staple articles of food and the necessaries of life, by which use a tax or toll is levied on those articles, ceases, while applied to such use, to be juris privati only, and becomes affected with the public interest, and such use may be regulated by the legislature without encroaching upon any of the constitutional rights of the owner.
    A person living under our Constitution has the right to adopt and follow such lawful business, not injurious to the community, as he chooses ; yet this right is subject to the power inherent in the legislature to regulate the use of all property and the conduct of all citizens toward each other when necessary for the public good.
    In considering the constitutionality of a statute, the courts are confined to the single question, whether the act in question exceeds the utmost limit of legislative power. If it does not, the courts must recognize and enforce it.
    If evidence of the fact,—e. g., existence of a monopoly,—is required to create the demand for legislative regulation, the courts must assume that the legislature had such evidence before it when it enacted the statute in regard thereto, and if any state of circumstances will justify such a statute, the courts must presume that it existed.
    
      Writs of habeas corpus to bring up person, and certiorari to inquire into the cause of detention, issued upon the petitions of Edward Annan and Francis E. Pinto, returnable at the General Term of the Supreme Court in the Second Department, June 25, 1888.
    These were proceedings brought to test the constitutionality of <£ An act to regulate the fees and charges for elevating, trimming, receiving, weighing and discharging grain by means of floating and stationary elevators and warehouses in this State,” passed June 9, 1888, being chapter 581, of the Laws of 1888, the offenses charged being that the petitioners charged more than five-eighths of one cent a bushel for elevating, receiving, weighing and discharging grain, and charged against a canal-boat or ocean steamer more than actual cost of trimming or shoveling grain to the leg of the elevator.
    The petitioners,' having each been held in default of bail by Andubw Walsh, Policé Justicein the City of Brooklyn, made application for the above mentioned writs.
    The facts of the case are fully given in the points of counsel and the opinion of the court.
    
      Bergen & Dychmcm, for the relators.
    I. This law contravenes article 1, section 6 of the Constitution of the" State of New York, which provides that “ No person shall be deprived of life, liberty or property without due process of law.” Liberty, as here used, includes and protects the right to sell one’s labor at the market price. Matter of Jacobs, 98 N. Y. 98; 2 N. Y. Crim. Rep. 539. The crew of a floating elevator, consisting of its captain, pilot, wéighmaster, deck-hands and grain shovellers are within this constitutional protection. A new statute of laborers would certainly be void, which should cut down the wages of these elevator men one-half, should forbid them to seek new employment, and punish an offense against the act as a crime. 3 Stephens History of Criminal Law, 203: Cooley Constitutional Limitations, 5th Ed. 734; Matter of Jacobs, supra. If the wages of those who work the elevator are secure against legislative control, why not the wages of the owner who may work on his boat or in the Produce Exchange. The adjudged cases do not suggest their distinction. Matter of Jacobs, supra; People v, Marx, 99 N. Y. 377; 3 N. Y. Crim. Rep. 200; Wynehamer v. People, 13 N. Y. 378; People v. Gillson, 109 N. Y. 389; People ex rel. Manhattan Sav. Inst. v. Otis, 90 Id. 48. In a contract for elevating grain the owner of the elevator sells labor and the use of his boat. The owner of an elevator must be cousidered' as the leader of a band of men who go into market to sell their united labor and the use of their complicated machine. Thus considered, the elevator owners-are secure against this law, unless their labor and property differ from other labor and property, and unless they are an exception to general laws.
    II. This law is not an exercise of the police power, of the State. Lakeview v. Rose Hill Cemetery, 70 Ill. 192; State v. Noyes, 47 Maine, 189 ; Thorp v. Rutland, & C. R. Co., 27 Vt. 150; Matter of Cheesebrough, 78 N. Y. 232; Matter of Jacobs, supra. “ Where the calling is not danerous to the public, either directly or incidentally, it cannot be subjected to any police regulation whatever, which does not fall within the power of taxation.” Tiedeman’s Limitations of Police Power, 273. Heither the health, comfort nor safety of the people is touched by the law in question. It is fatal to this law that it can have no other aim or effect than to control trade for the supposed benefit of trade.
    III. The case of Munn v. Illinois, 94 U. S. 113, does not control the case at bar, for the following reasons:
    
      First. Because the business of storing grain in warehouses in Chicago and the business of transferring the grain cargoes of canal-boats to ocean vessels in Hew York harbor differ in every respect deemed material in the Munn case.
    
      Second. Because the liberty of trade is much more effectually protected by the New York Constitution than by the Federal Constitution.
    
      Third. The New York courts are final in the interpretation of its Constitution, and must weigh the Munn case by the standard of the State decisions.
    
      Fourth. The' Munn case will be found to depend on English mediaeval trade rules, outgrown in Great Britain and rejected in New York.
    That case construed the Constitution of the United States. Both prohibit a deprivation of “ life, liberty or property.” But the Federal and State decisions have given very different meanings to the two constitutions.
    It is held in New York that the State Constitution protects the oleomargarine industry from legislative destruction. People v. Marx, supra. The Supreme Court of the United States decides there is no such protection in the Federal Constitution. Powell v. Pennsylvania, 127 U. S. 678.
    Again, the New York Constitution forbids a destruction of intoxicating liquors under guise of the police power. (Wynehamer v. People, 13 N. Y. 378), while the Federal Constitution does not prohibit such a destruction. (Mugler v. Kansas, 123 U. S. 623.)
    It is evident, therefore, that ample protection of the citizen is found in the Constitution of New York than is contained in the Federal constitution and its interpretation by the New York courts is final. People v. Gillson, 109 N. Y. 389; Slaughter House Cases, 16 Wall, opinion Miller, J., page 66.
    It results that the decision in Munn v. Illinois is of no greater force in this argument than the decision of the Illinois courts, and the opinion of the chief justice has its value from his high standing and the great authority of the court over which he presided. Neither binds this court, and each must be weighed by the standard of the New Yoi’k cases.
    
      The Munn case was decided on grounds which are absent from this' case.
    There is a difference easily perceived between a floating elevator,—i. e., a hull floating in the water, and supporting a tower filled with machinery, whose whole work is to transfer grain from canal - boats to ships,—and a warehouse on shore, whose whole business is to store grain. It was only the rates of storage that were regulated in Chicago.
    The Chicago grain warehouses had a physical monopoly of the storage of grain there through their situation between the water front and the railroads, and their combinations with the railroads, and the monopoly was the ground of the decision.
    Tear after year in Illinois laws were enacted against the combination, which fell short of the mark. Finally, in 1870, the State Constitution was revised. The instrument declared all grain warehouses to be public warehouses, and directed the legislature to enact laws to protect the producers and shippers of grain against the combination of railroads and warehouses. Article XIII. §§ 1, 7.
    The legislature passed a law requiring all grain ware-housemen to take out a license and fixing maximum prices for the storage of» grain, and punishing offenses against the law as misdemeanors. The action was a criminal information for doing business without a license. The prisoner was convicted in the Criminal Court of Cook County, and carried his appeal to the court of last resort by writ of error. The conviction was there affirmed by a divided court.
    The prevailing opinion in the case shows that the monopoly, and combination with the railroads was held to have caused the constitutional provisions, and the law, and to be a full justification for both. Munn v. People, 69 Ill. 80, 89, 90. The court held, that as long as the title and possession of property were undisturbed, the Constitution was not violated. In the Supreme Court of the United States, Judge Waite, after discussing the question, con-eludes (94 U. S. 125) that the guarantee against the deprivations of life, liberty and property means no more in the United States Constitution than in Magna Charta ; saying: “ 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 deprive the owner of his property without due process of law.” The Flew York courts hold the contrary doctrine. Matter of Jacobs, supra; People v. Gillson, 109 N. Y., 389; People ex rel Manhattan Savings Inst. v. Otis, supra; Wyneharner v. People, supra.
    
    Judge Waite cites the statute of William and Mary, passed in 1692, regulating the charges of wagoners. The force of the citation is the implication that such a regulation of trade was thought consistent with Magna Charta, and did not “ deprive ” any one of his “ liberty or property.” But the truth is that Magna Charta does not restrain Parliament, and its acts are therefore no measure of the promise exacted by the barons from King John, to deprive no man of his life, liberty or property. There is another fallacy in Judge Waite’s argument. The right to regulate ferries, carriers, hackmen, millers, and wharfingers is based upon the fact that these were employments, as is shown by the' cases, which could not be followed except by authority of lawn Sir Matthew Hale, De Portibus Maris, quoted by Judge Waite, p. 126; People v. Vanderbilt, 28 N. Y. 396; Wiswall v. Hall, 3 Paige, 313; 15 Viner Abr. 398 ; Cooley Const. Lim. (5th ed.) 736; Hix v. Garner, 2 Bulst. 195. Judge Waite misreads Mobile v. Yuille, 3 Ala. N. S. 137; 36 Am. Dec. 441; for he cites it as a case ujfiiolding an ordinance fixing the price and weight of bread, whereas the price of bread was not in question. Of Mr. Annan’s right to exclude everybody from his waterfront property and his boat there is no doubt. Wetmore v. Brooklyn Gas Light Co., 42 N. Y. 384. Judge Waite does not show that the Chicago warehouses are public in any respect, but proceeds to argue that the warehousemen had a virtual monopoly, and therefore their property ceased to he jurisprivati and must submit the public control. 94 U. S. 130. It is submitted that the decision in the Munn case goes no farther than to affirm than the United States Constitution does not forbid the State to regulate virtual monopolies. Cooley Const. Lim. (5th ed.) 737 ; Tiedeman Limitations of Police Power, 235. The monopoly at Chicago was a physical one, growing out of the situation of the warehouses at the termini of the railroads and upon the shore of Lake Michigan. They were practically railroad warehouses, and their use was a convenience to railroad transportation. They were thus intimately connected with the franchises granted to the railroads by the State. Every bushel of railroad grain seeking lake transportation, and all from the lake for the railroad had to go into these warehouses, and pay their charges. Their number could not be increased.
    In Hew York harbor it is a physical impossibility for either the floating or stationary elevators to have a monopoly. Th'e canal-boat and the ocean vessel can go to a wharf in either Hew York, Brooklyn or Jersey City, and find a stationary elevator.
    Any dozen of the hundreds of wharves can do the whole business of the port in the' transfer of grain. It is plainly impossible for a combination to “ corner ” this business, even leaving out of the account the floating elevators. There is no limit to the duplication of these floaters,” and there never can be a monopoly of the transfer of grain cargoes from canal-boat to ship as long as the waters of the harbor are free.
    There is another view of the Munn case. Judge Waite wrote, 94 U. S. 126: “ 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 had 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.” But as to this doctrine, see Cooley Const. Lim. (5th ed.) pp. 737, 739; Tiedeman Limitation of Police Powers, § 93.
    There is a plain and distinct boundary set to the labor and property under legislative control, and it cannot be shifted by the legislature, and it is such only as has received from the State something of advantage to the labor or property, some permission that was necessary to work or use one’s property in a peculiar way, or some aid, encouragement, franchise, or privilege.
    IV. This law takes private property for public use without compensation. The case very near the one at bar is where the legislature declared the Backet Biver public for floating logs, and the Court of Appeals held “A statute de- j daring a private stream on which riparian owners have' vested interests, a public highway without compensation to the owners, is null and void.” Morgan v. King, 35 N. Y. 454.
    The establishment of a maximum charge for the use of property is the exact equivalent of declaring it public. Taking away an essential attribute of their property for the good of the Erie Canal and its commerce, cannot be distinguished in principle from taking from a land-owner his riparian rights in order to increase the commerce in logs, or from taking from a land-owner adjoining the canal the right' to flow his land for the good of the canal and at a price fixed in the law.
    V. This bill is a regulation of a foreign commerce, and of commerce between the States. The grain which comes to Hew York City by the Erie Canal all comes from other States and substantially all goes abroad. The law in question compels the elevator owner to charge the ocean steamer. for trimming. The facts in the Munn case were entirely different. There it was a warehouse taking grain for storage. The court very rightly said it was a matter of exclusive State concern, and added that a cáse might arise in which a State, under the form regulating its own affairs, might encroach upon the exclusive domain of Congress.
    VI. The statute in question regulates . not the use of property, but the price of labor, for however complex the machine, it is still human labor which elevates, receives, weighs and discharges grain. The part of the law which forbids the elevator owners to charge more than the actual cost “of trimming or shoveling to the leg of the elevator,551 etc., deals exclusively with the labor. If this part of the law is void, all must go, for it cannot be separated from the rest.
    VII. As to the case of Powell v. Pennsylvania, 127 U. S. 678, that decision is in conflict with those of the Court of Appeals. People v. Marx, supra; People v. Gillson, supra.
    
      Hyland & Zabriskie, for the people, and Canal Boat Owners’ Association, respondents.
    I. The business of elevating grain is affected with a public interest.
    This act to regulate the charges for elevating, trimming, receiving, weighing and discharging grain by means of floating elevators and warehouses in this State, wholly applies to grain shipped at Buffalo from lake vessels and store- - houses into canal-boats and transported, therein through the Erie Canal and the Hudson River to Hew York, and there discharged into storehouses or ocean vessels. This is conceded by the relators’ counsel. In every case the elevation takes place upon the waters of the State, and all the grain that is elevated, passes through the Erie Canal and Hudson River. The business of elevating grain, which is affected by this act, has been therefore created and is wholly maintained by the transportation of grain through the Erie Canal.
    To sustain this transportation business by water in the State of Hew York, upon which the business of elevating grain depends, the State of Hew York has built the Erie Canal and has expended in the construction thereof one hundred millions of dollars, and now maintains a free canal ■Ut a cost to the people of the State of about one million dollars annually. Hence any business which directly affects this waterway affects the public interest.
    Mr. Annan, one of the defendants in this case, who is at the head of the largest elevator association in Hew York, testified in 1881 before the Senate committee, as follows: M Q. What would be the effect of retaining the tolls ? A. It would drive the trade to other places. Q. Why would it? A. They cannot afford to pay the tolls at the present rate and get a cent out of it; there is nothing in it. Q. Suppose the tolls were removed, can Hew York, in your judgment, retain that trade ? A. Yes. Q. Do you think a cent a bushel toll is sufficient to drive the business away ? A. I think one-eighth cent would drive it away. One-eighth cent would turn grain from Baltimore or any other port. Q. Suppose Hew York gives up the canal, can Hew York retain the grain trade by the railroads in competition with Boston, Baltimore, the Welland Canal and the Mississippi route? A.'Ho, sir.”
    It will be seen from the foregoing facts that the case of elevating grain in the State of Hew York, is affected with a public interest in a much more striking manner than the business of storing grain in Chicago affects the public interest, as was shown in the case of Munn v. Illinois. See, in that case, the opinion of Chief Justice Waite, showing that the business of storing grain in Chicago affected the public interests.
    But in addition to the reasons, which apply equally as well to the business of elevating grain as to storing it, set forth by Chief Justice Waite, upon which he predicates a public interest, we have in this case a business which directly affects the greatest internal water-way in the world, which is made free to the world by a direct tax upon the people of the State of Hew York. It would follow that there could be no doubt as to the fact that the business of ■elevating grain, as it directly affects the usefulness of this water-way, is affected with a public interest.
    That the business of elevating grain in the State of New York is affected with public interest is clear, first, because men engaged in the business of elevating grain can, if not subject to the control of law, fix a price which would destroy the usefulness of the Erie Canal, which has been built ■and kept open at the expense of the people of the State of New York; second, by demanding an unreasonable charge for the services performed, men engaged in elevating grain ■can practically annihilate all the capital invested in boat and vessel property employed in the grain trade in the State of New York; third, because the men engaged in the elevation of grain can, by combining, practically take away from the grain producers of the great grain States of the West and Northwest the usefulness of the Erie Canal, the only highway which they have to compete with the great trunk railroad lines to the seaboard.
    II. The business of elevating grain is a monopoly.
    Not only is the elevation of grain in the State of New York affected with public interest, but the business of elevating grain in the State of New York has become a virtual monopoly. It is only necessary to refer to the record in this case, which, to say the least, is very incomplete, to become satisfied on this point. The record shows that thirty-one floating elevators in the City of New York are ■controlled by six firms. Moreover, it will be observed that the price fixed for elevating grain has been fixed by what is termed a Committee-of Grain Men in the Produce Exchange, made up of grain receivers, exporters, and steamship agents, in conference with a committee of elevator and warehouse' men. No member of that committee represents the interests of the boatmen, who, up to the passage of this act, paid for the elevation of the grain. It further appears that in no instance has the owner of the boat had a voice in fixing the cost of elevation or of electing or selecting who shall elevate the grain.
    
      There is no member of this committee representing thé interests of the boatmen. The testimony of Edward Annan shows that the Grain Committee of the Produce Exchange fixes the schedule of prices for elevating grain by floating and stationary elevators, and that only such elevators as are licensed by the Produce Exchange can give warehouse receipts which are considered .regular. Those ware, house receipts are the medium for transacting grain business on the Produce Exchange, and under rule 5, section 1, of the Rules of the Grain Trade, established by the New York Produce Exchange, no warehouse receipts can pass current on the floor unless the warehouse is licensed by the Exchange and the owners thereof members of the Exchange. In this way the rate of charges for elevating grain is fixed by a committee of grain men, who are the owners of the elevators and warehouses, and these charges cannot be altered or in any way changed, because the Produce Exchange will only license such elevators as they deem fit,1 and are owned by members of the Exchange, and only the receipts of licensed elevators and warehouses can pass current on the floor of the Exchange. These facts prove conclusively that the business of elevating grain in the City of New York has become and is an absolute monopoly, controlled by a committee of owners of elevators and warehouses, and the persons who are most directly interested in the cost of elevating grain have no voice whatever in fixing the rate, or selecting the persons or parties who shall elevate the grain.
    III. The State confers privileges and benefits upon the business of elevating grain.
    The tax-payers of the State of New York, by sustaining a free canal, have made the business of elevating grain by floating and stationaiy elevators possible. The State has given to the common carrier a free canal, and the business & * of elevating grain into and out of the boat is incidental thereto. Should the people of the State of New York discontinue the Ei’ie Oanal, the business of transporting and elevating grain would be wholly destroyed. Therefore, it must be conceded that the business of elevating grain does receive support from the public, and that it is only through such support that the business can exist. It is to be remarked that no matter how trifling this support or benefit may be, it is sufficient to give the State the right to'regulate the business by law.
    IV. The rate of charge for elevating grain is now fixed by the by-laws of the Produce Exchange, which derives its power through a charter from the State.
    If the principle laid down in the brief of the relators’ counsel, that the creator of an exclusive privilege may control his creation, be true, then there can be no doubt that the State must have a right to regulate the business of elevating grain in the State of New York, if the owners of the elevators have a right, under the charter of the Produce Exchange, to fix the rate.
    V. The last clause of section 1 of this act works no in justice.
    It prohibits any charge, in the process of handling grain by means of floating and stationary elevators, against lake vessels, propellers, ocean vessels, steamships and canal-boats, except the actual cost of trimming or shoveling to the leg of the elevator when unloading and trimming cargo when loading. The relators’ counsel argues that this part of the act is contrary to the agreement of the master of the boat, who, under his bill of lading, agrees to deliver the" grain or cargo. This, however, is not trne. This part of the act simply regulates and declares what shall be the work which a carrier of grain shall be obliged to perform. It will be seen that, by reason of the machinery used in elevating grain, the acts of elevating, weighing and transferring the grain are all done virtually at the same time. The grain is carried up from the discharging vessel into a hopper in the elevator, and, when the hopper is filled, by pulling a slide the grain passes into the vessel which is loading, or is carried into the storehouse, in case of a sta-
    
      tionary elevator by the force of gravitation. It is no part of the duty of the carrier to weigh the grain, and it is necessary for the owner or consignee of the cargo to have it weighed. Therefore, frequently the elevating of the grain from the boat into the hopper in the elevator is done solely for the purpose of weighing. Therefore, it is a mere matter of adjustment, and the. carrier or owner of the boat performs all the duty that he should properly be called upon to do under the present method of discharging grain, when he trims the grain to the foot or leg of the elevator or trims his vessel, and in any event no injustice is done to the owners of the grain, because when the affreightment contract is made it is made with the knowledge that all the carrier is to do is to trim the grain to the leg of the elevator. The same thing is true in trimming the grain in a vessel when the grain is spouted from the elevator into the vessel loading. All that is required of the vessel loading is that she shall pay for trimming the grain in the vessel, the owner of the grain paying for the spouting of the grain into the vessel. This also is a mere matter of adjustment, and it being understood that the owner of the grain does that part of the labor, due account may be taken thereof in making the affreightment contract. Therefore, there is nothing in this part of the act which in any way works an injustice.
    VI. The decision of this application must be controlled by the Chicago warehouse cases, Munn v. Illinois, 94 U. S. 113, which is directly in point; approved in Bertholf v. O’Reilly, 74 N. Y., 509.
    The cases of Matter of Jacobs, 98 N. Y. 98; 2 N. Y. Crim,. Rep. 539 ; People v. Marx, 99 N. Y. 377; 3 N. Y. Crim. Rep. 200; Wynehamer v. People, 13 N. Y. 378; People v. Gillson, 109 N. Y. 389; citied by relators’ counsel, have no application to the questions involved in the present cases, and the principles which underlie the cases at bar are in no way connected with or considered in the said four cases cited by relators’ counsel and can give us no light upon the subject under consideration.
    The principle now contended for is this:
    Whenever an individual, or a corporation, or an association of individuals, choose so to conduct themselves, or so to use their property as directly and materially to affect the property of others and the interests and welfare of the public generally, they thereby subject themselves and the property so used to government regulation. .
    This regulation may be governed by statute or controlled by common law. Murphy v. Board of Trade, 20 Chic. Leg. News, No. 7 (Oct. 22, 1887), Schwarz v Consol. Gas Co. of Baltimore, 1 Railway and Corpor. Law Jour. 339; Ches. & Potomac Telephone Co. v. B and O. Telegraph Co., 66 Md. 399 ; Wilson v. Commercial Telegram Co., opinion of Dykman, J.
    It is clear from these authorities that whether or not conduct or property may be affected with a public interest-does not depend upon whether that conduct and that property pertains to a corporation, a voluntary association, or a single individual. Furthermore, it matters not whether a common carrier is an individual or a corporation. In so far as he is a common carrier, he is exercising a public employment, and it is the employment to which the liability to governmental regulation attaches, and not the agency by which, or through which, the employment is. exercised. So . we may include express companies, hotel - keepers, hack-men, millers, w.harfingers, to all to whom this principle has. been applied, and the fact of their being merely private individuals in no way prevents the application of the principle, because the injury to the public would be the same, no-matter whether the wrong were done'by an individual or a corporation, or whether that corporation were private or public. And neither hackmen, nor millers, nor inn-keepr ers, although they are subject to governmental control, have anything in the nature of special privileges conferred upon them, as some corporations have; yet they are as much subject to the exercise of the police power, regulation in their conduct and in the use of their property, as any railway corporation. It is only a question of extent, at most. The principle involved is precisely the same.
    VII. The act is constitutional as an exercise of the police power of the State.
    The statement of the right to do business and use one’s private property in one’s own .way is one of those very general propositions which are subject to endless exceptions and endless modifications which are embraced in two maxims: one of them is Solus populi suprema lex ; the other is Sic uiere tuo ut alienum non laedas (see Broom’s Legal Maxims (7th Am. ed.), 1, et seq., and 364, et seq.). By referring to Broomis Legal Maxims, above cited, it will be seen that both these maxims are as applicable to the conduct of persons and corporations as they are to the manner of use of their property, and in fact the whole police power Of the State pertains, as much to the regulation of the conduct of individual as to a regulation of the use of their property.
    The police power of the State is in fact based upon the maxim Sic utere tuo, etc. Entick v. Carrington, 19 How. St. Tr. 1066.
    But the sine qua non of the existence of society, and hence of private property, is the abridgment of individual rights for the public welfare. Cooley Const. Lim. (5th ed.) 438.
    Like principles were well expressed by the Supreme-Court of Alabama, in the Mayor, etc., of Mobile v. Yuille, 3 Ala. N. S. 139, 140; 36 Am. Dec. 441, in which an ordinance regulating weight and price of bread was held to be valid. See also Bertholf v. O’Reilly, 74 N. Y. 509; Phelps v. Racey, 60 N. Y. 10; Hill v. Thompson, 48 Super. 481; Davis v. State, 44 Am. Rep. 128; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 
      703; State v. Burgoyne, 40 Am. Rep. 60; Commonwealth v. Alger, 7 Cush. 53, 84.
    Wherever property is affected with a public interest, wherever it is subject to governmental control and regulation, because it directly affects others in the enjoyment of their property, it is subject to the police power of the State; that then" there exists a status between the public and that property, between that property and its owner, between the owner and general public, and that as long as the individual or corporation sees fit to use his property in a manner which affects the public interest, this status must exist, and the maxim of sic utere, etc., would be applied and enforced by the courts.
    Till. The law in question is valid as an act regulating commerce on the waters of the State.
    As the Federal Congress has not legislated upon the subject, the State had power to do so. The third clause of the eighth section of the first article of the Constitution of of the United States provides that: “ The Congress shall have power to regulate commerce with foreign nations,” etc. Cooley v. Board of Wardens, 12 How. U. S. 299; Ex parte McNeil, 13 Wall. 236; Wilson v. McNamee, 102 U. S. 572; Fitch v. Livingston, 4 Sand. 492.
    IX. In view of the foregoing authorities it cannot be said that this law (chap. 581, Laws 1888) contravenes article L, section 6 of the Constitution of the State of New York. People ex rel. Sinkler v. Terry, 108 N. Y. 1; People ex rel. Hatfield v. Comstock, 78 N. Y. 356; Matter of Gilbert Elevated R. Co., 70 N. Y. 361; People ex rel. City of Rome v. Briggs, 50 N. Y. 553; Butcher’s Union Co. v. Crescent City Co., 111 U. S. 746.
    
      
       Several briefs were filed by each side, which cannot be here given for want of space. But, with the exception of the supplemental brief of respondent, which is fully covered by the opinion of the Court, the main points of the argument on each side have been given With a fullness justified by the very great importance of the case.
    
   Brown, J.

The defendants were arrested for violation of chapter 581 of Laws of 1888, the first section of which reads as follows:

“ Section 1. The maximum charged for elevating, receiving, weighing and discharging grain by means of floating and stationary elevators and warehouses in this State shall not exceed the following rates, namely: For elevating, receiving, weighing and discharging grain, five-eighths of one cent a bushel. In the process of handling grain by means of floating and stationary elevators, the lake vessels, or propellers, the ocean vessels, or steamships, and canal-boats shall only be required to pay the actual cost of trimming or shoveling to the leg of the elevator when unloaded, and trimming cargo when loading.”

The defendant Annan was part owner and one of the agents for a floating elevator, engaged in business in and about the harbor of ¡New York; and the defendant Pinto is one of the firm of F. E. Pinto & Sons, engaged in business as warehousemen in the City of Brooklyn.

The complaint against the defendants is that on the 21st day of June last they each charged the complainants for elevating, receiving, weighing and discharging grain more than five-eighths of one cent a bushel.

Upon an examination held before a magistrate the defendants were committed to jail in default of bail, pending their trial, and have instituted these proceedings for the purpose of procuring their discharge upon the ground that the act of the legislature aforesaid, under which they were arrested, violates that provision of the State Constitution which provides that no person shall be deprived of life, liberty or property without due process of law.

So much has been written within the last few years upon this constitutional safeguard, and the meaning of the terms quoted has been so fully discussed in recent .cases in both State and Federal courts, that it would be superfluous for me to attempt to add anything to what the courts have already said, or to do more than refer to the conclusions that have been reached, and apply them to the case under consideration.

For a full discussion of the subject I refer to the following cases: Live Stock Association v. Crescent City, 1 Abb. U. S. 398; Slaughter House Cases, 16 Wall. 36; Munn v. Illinois, 94 U. S. 113: Bertholf v. O’Reilly, 74 N. Y. 509; Matter of Jacobs, 98 N. Y. 98; 2 N. Y. Crim. Rep. 539; People v. Marx, 99 N. Y. 377; 3 N. Y. Crim. Rep. 200; People v. Gillson, 109 N. Y. 389; Mugler v. Kansas, 123 U. S. 623.

While the general proposition is conceded that a person living under our Constitution has the right to adopt and follow such lawful business not injurious to the community as he chooses, yet this right is subject to the power inherent in the legislature to regulate the use of all property and the conduct of all citizens toward each other when necessary for the public good.

This power is usually denominated the police power of the State. Its exact boundaries and limitations have never been judicially established by any general rule, and probably never will be. Each case as it arises must be determined upon its own facts. While it may be difficult in many cases to reconcile the conclusions of different courts upon similar facts, all agree upon a few general rules that must control in determining the validity of the law.

Courts are confined to the single question whether the act in question exceeds the utmost limits of legislative power. If it does not—if it can stand when brought to the test of the Constitution, the question of its validity is at an end, and the Judicial Department of the government cannot refuse to recognize and enforce it. It may be opposed to our opinion of natural justice, or its operation may appear to be inequitable toward a large class of citizens, but if it is a valid exercise of legislative power we cannot judicially condemn it.

It was said by Chief Justice Waite, in Munn v. Illinois: il For us the question is one of power, not of expediency. If no state of circumstances can justify such a statute, then we may declare this one void; but if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charges as one of the means of regulation is implied.”

In People v. Marx, Rapallo, J., states the question as follows: Conceding that the only limits upon the legislative power of the State are those imposed by the State Constitution, and that of the United States, we are called upon to determine whether or not these limits are trangressed by an enactment of this description,” and Judge Cooley, in his work on Constitutional Limitations, page 222, says : “ Whether a statute is constitutional or not is always a question of power. In any case in which the question is answered in the affirmative the courts are not at liberty to inquire into the proper exercise of the power. If evidence was required, it must be supposed that it was before the legislature when the act was passed, and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding.”

We have, therefore, but a single question in the case, viz.: Has the legislature the right to regulate the use of property of the character specified in the act in question at all?

This question mnst receive an affirmative answer. The power has been exercised as to various classes of property since the formation of,the State, and the reports are full of decisions upholding the authority of the State to regulate the use and enjoyment of property, and the control of, private business in many ways; and in the case of grain elevating business we have the case of Munn v. Illinois as a distinct adjudication in favor of the validity of such a law as the one in question.

The citations I have made are a sufficient answer- to the argument of the learned counsel for the appellants, that this case can be distinguished from the Munn case, on the ground that the validity of the Illinois statute was placed on the fact that the Chicago warehousemen had a virtual monopoly of the elevator business, and that the facts here show that no monopoly could exist.

How can this court say that no monopoly exists or may not exist in some or all of the cities of this State named in the law, if it be that-the existence of a monopoly is the fact which justifies such legislation? We must assume that the legislature had evidence before it which created the demand for legislative regulation, and we cannot review its decision upon that question. Certainly the evidence taken upon a prosecution for violation of the provisions of the law cannot justify the assertion that the facts surrounding the business did not create a demand for the law.

As was said by Chief Justice Waits in the Munn case, “ if any state of circumstances would justify such a statute, we must presume they exist.”

I fail to see how we can give any effect to the evidence taken before the magistrate on the question of the law’s constitutionality.

The act is not made applicable to persons who possess a virtual monopoly of the business of elevating grain, but to certain political divisions of the State, and, within those divisions, is applicable to every individual.

It cannot be a valid law as to Mr. Annan and an invalid one as to Mr. Pinto, and yet, if the court is to determine in every case that arises under the law whether or not a monopoly exists, we might reach different conclusions in different cases.

It would certainly be a strange system of practice, assuming the court could review the decision of the legislature upon questions within the scope of legislative power, that it should do so without having before it the evidence on which the legislative decision was based.

But such is not the law. In Bertliolf v. O’Reilly, 74 N. Y. 509, the Court of Appeals asserted that there was no limitation upon legislative power, except the limits and restraints of the Constitution, and against the point so ably argued by the learned counsel for defendants that the court will look into the-evidence taken on the trial and see whether a proper case exists for legislative interference. The case of People v. Cipperly, 101 N. Y. 634; 4 N. Y. Crim. Rep. 69, and the opinion of Learned, J., 37 Hun, 324; 3 N. Y. Crim. Rep. 401, is a direct authority.

In considering the question whether the legislature could prohibit the sale of milk drawn from healthy cows, which in its natural state falls below the standard fixed by the act, that learned justice says: “Is that to be a question for the jury? If so, the court must charge a jury iu each case that if they find milk below the standard to be unwholesome, then the statute is constitutional; if they find it wholesome, then the statute is unconstitutional. Evidently a constitutional question cannot be settled, or rather unsettled, in that way. The constitutionality would vary with the varying judgment of juries.”

This opinion was adopted as the opinion of the Court of Appeals.

But I can see no distinction between the two cases. The circumstances surrounding the business in this State are apparently the same as in the Chicago case.

The great grain producing region of the West and Hortliwest, sending its grain by rail and water to Chicago, and making that city one of the great markets of the world, created a demand for means to handle and store the grain, and these means were found in the elevators and warehouses.

Fourteen elevators and warehouses adapted to this business in" the city of Chicago, the case states, were controlled by nine business firms, by whom the prices for elevating and storing grain were fixed and regulated.

In this case we know that all grain brought into the cities named in the act in question arrived in cars or boats. That, whether it be stored in warehouses or. reshipped to other places, it demands stationary and floating elevators to handle it. That, in the harbor of ¡New York, the evidence informs us, at least five different business firms operate and control floating elevators, and that the charges are fixed by a Committee of the Produce Exchange, of which body some or all of these firms are members.

It is apparent, therefore, that the opportunity for a virtual monopoly is the same in each case. The element necessary to create it in each case was combination, and whether there was or had been, or might be such a combination as to justify the interference.of the legislature to regulate the use of this class of property, we must presume was a question upon which the legislature had sufficient evidence.

At all events, it is impossible for me to distinguish this case from the Illinois case. That statute is a precedent for legislation of this character, and the decision of the Supreme Court of that State, and of the Supreme Court of the United States, and the substantial approval it received from the Court of Appeals in Bertholf v. O’Reilly, are decisive of the constitutionality of the law.

The Slaughter House Cases, 16 Wallace, 36; Mobile v. Yuille, 3 Ala. N. S. 140; 36 Am. Dec. 441; and Bertholf v. O’Reilly, 74 N. Y. 509, are also distinct authorities in favor of the validity of laws of this character.

In the latter case it was sought to have declared invalid that part of the Civil D.amage Act which makes the owner of real estate liable for damage resulting from the sale of liquor upon his property, upon the same ground that the law under consideration is now attacked, but the Court of Appeals held that it was a proper regulation of the use of property, and in the opinion cite the Slaughter House case and the Mnnn case, with approval, as furnishing examples of the due exercise of the police power by the State, and Judge Andrews, speaking of and quoting from' them, says that “ they illustrate the scope of the police power in legislation.”

There is nothing in the more recent decisions of our Court of Appeals to which we have been referred that is in conflict with the authorities I have cited.

In People v. Gillson, the court held that chapter 691, Laws of 1887, was in no aspect valid as a health law, nor was it a regulation of the use of property or of trade in food.

Chapter 202, Laws of 1884, section 4,—which was declared invalid in People v. Marx,—absolutely prohibited the manufacture or sale as an article of food of ■ any substitute for butter or cheese, however wholesome or however openly and fairly its character was avowed and published.

Such a law has nothing in common with the law in question.

The Tenement House Cigar Act (chapter 272, Laws of 1884) considered in Matter of Jacobs, was declared invalid for the reason that it was apparent on the face of the law that it was not intended to protect health, nor as a regulation of the use of property. Says Eakl, J.: “ It does not deal with tenement houses as such; it does not regulate the number of persons who may live in any one of them, or be crowded into one room. Nor does it deal with the mode of construction for the purpose of securing the health and safety of' their occupants, or of the public generally. . . It was not intended to protect the health of those engaged in cigar-making, nor to protect the health of that portion of the public not residing in the forbidden tenement houses, nor was it intended to improve or protect the health of the occupants of tenement houses. It is plain that it is not a health law and that it has no relation whatever to the public health.”

Such a law has clearly nothing to justify or support it, and was a plain invasion of the constitutional rights of the persons affected by it.

Laws which are intended to regulate the use of property in connection with the great products of the country, and especially with the necessaries of life, are plainly not to be classed with such laws as were considered in the cases just-cited. The sale of the property may not be prohibited when it is not unlawful nor injurious to the public, and when its character is frankly avowed. Nor can lawful employment be prohibited when its prosecution is not injurious to those engaged in it, nor to the general public, without violating the safeguards of the Constitution. But property used in handling and storing the great staple article of food, and the necessaries of life by which use, a tax or toll is levied thei-eon, .cases, while applied to such use, to be juris privati only, and becomes affected with a public interest, and such use may be regulated by the legislature without encroaching upon any of the constitutional rights of the owner.

I think the law in question valid, and the proceedings must therefore be dismissed, and the "defendants remanded to the custody of the sheriff.

Barnard, P. J., and Pratt, J., concur.  