
    The People ex rel. Edward Annan, App’lts, v. Andrew Walsh, Police Justice of Brooklyn, and Clark D. Rhinehart, Sheriff of the County of Kings, Resp’ts. The People ex rel. F. E. Pinto, App’lts, v. The Same, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 15, 1889.)
    
    Appeal from order of supreme court, general term, second department, dismissing habeas corpus proceedings and remanding the relators to custody of the sheriff.
    
      Wm. N. Dykman, for app’lts; J. A. Hyland, for resp’ts.
    
      
       Affirming 18 N. Y. State Rep., 45.
    
   Orders of general and special terms affirmed on opinion of People v. Budd, ante p. 533.

Peckham, J.

(dissenting.) — The Federal supreme court has decided that a statute of the state of Illinois which is somewhafsimilar to the one under consideration here, was a valid law so far as the Federal constitution was concerned, and that it violated no right, privilege or immunity protected by that instrument.

A clause exists in the constitution of this state which is similar to one of those in the Federal constitution, under which the claim of invalidity was made and denied as to the Illinois statute. The case of Munn v. Illinois, 94 U. S., 113, establishes the point, that the Illinois statute there under discussion, as applied to the particular facts of that case, did not violate any provision of the Federal constitution, nor infringe upon any privilege or immunity-protected by it

The facts in these ¡New York cases differ considerably, in certain particulars, from those in the Munn case; and if the principles decided in that case were upheld, it might still become of the greatest importance to distinguish these differences and to discuss, and decide upon their materiality as applicable to the question of the subjection of the defendants to the provisions of this act. But the question which arises in limine is based upon the assumption that the cases are substantially alike in their facts, and the question is this: In construing a clause in our state' constitution simil lar to one in the Federal instrument, should we follow the interpretation of such clause as given by the Federal court, which interpretation compels us to deny to these defendants the relief they ask for, although otherwise we are satisfied that they are justly entitled to that relief.

If any right, privilege or immunity claimed under the Federal ■constitution or laws be denied by this court, its decision is reviewable in the supreme court, and in such cases it is our duty to follow in the footsteps of that court, and to be guided and controlled by its decisions. But in this case the right is claimed under our state constitution, and in matters pertaining to its proper construction our decision is final, excepting- that if, as constructed by us, the constitution or our laws deny the existence of some right or privilege claimed by a party by virtue of the Federal constitution or laws, our decision is reviewable by the Federal court, not for the purpose of reviewing our construction of our own constitution or laws, but to see whether, under the constitution or laws as construed by us, any right or privilege existing by virtue of the Federal constitution or laws has been violated or denied, and if so, to give it effect, notwithstanding the state law or constitution. But where we deny no right or privilege claimed, and, on the contrary, assert and protect it, there is no review by the federal court possible.

When the privilege or immunity is claimed under our state constitution, and we believe that it is rightfully and legally claimed, although the claim rests upon a clause which is similar to the one in the Federal instrument, under which it has been denied by the Federal court; nevertheless we ought, as we think, to give expression to our own judgment, under the sanction of our official duty, to declare the law as we believe it to exist, notwithstanding we ■differ with the conclusions arrived.at by the Federal court. In so doing we decide against no right, privilege or immunity claimed under the Federal constitution or laws, but, as a state court, we decide in a matter over which we have full jurisdiction, upon the proper construction to be given to the fundamental law of the state. We, therefore, proceed to give our views on the subject-matter involved in these appeals.

It is, perhaps, needless to inaugurate the discussion of the question by an expression of the very great respect we feel for the Federal supreme court, and for each of its distinguished and learned members, and yet in doing so we but give voice to the sentiments which, as we believe, possess judges and citizens alike throughout the land. It is only in the performance of our official duty that we venture to differ from that court regarding matters which we .are bound to decide, and when there is an equal obligation to decide them in accordance with our deliberate views.

The case of Munn v. Illinois, 94 U. S., 113, has been referred to in our court but sparingly, as there has not been very frequent occasion for such reference.

It was referred to in Bertholf v. O'Reilly, 74 N. Y., 509; Boardman v. Lake Shore & Michigan Southern Railway Company, 84 id., 157, 186; People v. King, 110 id., 418, at 424, 428; 18 N. Y. State Bep„ 353; and in Buffalo East Side Railroad Company v. Buffalo Street Railroad Company, 111 N. Y., 132; 19 N. Y. State Rep., 574. These are the only cases I have observed, although there may be others which have escaped my attention.

In Bertholf v. O’Reilly, 74 N. Y., 509, it was decided that the legislature has power to create a cause of action for damages in favor of one who is injured in person or property by the act of an intoxicated person against the owner of real property, whose only connection with the injury is that he leased the premises where the liquor causing the intoxication was sold or given away, with the knowledge that intoxicating liquors were to be sold thereon.

In speaking of the police power, Andrews, X, in the above case cited The Slaughter House Cases, 16 Wall., 36, and Munn v. Illinois, to show how far courts have gone in upholding legislation affecting private rights and property as a due exercise of the police power residing within the state. He said those “cases may^ perhaps, be deemed to have carried the right of legislative interference with private rights and property to its utmost limit, but they illustrate the scope of the police power in legislation.”

The legislation in question in the Bertholf case was placed upon the right of the legislature to control the use and traffic in intoxicating liquors, and its authority to impose liabilities upon those who exercise the traffic or who sell or give away intoxicating drinks, for consequential injuries to others, the court said, follows, as a necessary incident. Such right of legislation as to the prohibition or regulation of the sale, etc., of intoxicating liquors comes within the narrowest definition of the police power, and is substantially denied by no one.

In the Bertholf case there was nothing which called for the approval or affirmance of the case of Munn, or the very broad principle asserted in and underlying that case. It was referred to, as stated in his opinion, by Andrews, X, for the simple purpose of showing to what extent some courts had gone, and it was stated to be one where the right had been carried to its .utmost limit, but the limit itself was neither approved or disapproved. Nothing in Boardman v. Lake Shore, etc., Company, 84 N. Y., 186, is material upon the question. It was simply stated that the Munn case did not bear out the contention for which it was cited by the appellant.

In People v. King, 110 N. Y., 418, 424, 428; 18 N. Y. State Rep., 353, the question was, whether the law securing to colored persons the right to admission on equal terms with others to public resorts and to equal enjoyment of privileges of a quasi public character, was a valid law as applied to defendant’s place of amusement • It was held so to be.

The police power, it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. No one questions it in regard" to either of those two important branches of government. The extent of its proper exercise in such cases is open, however, to some differences of opinion. The place of amusement of King was held to be so far public with reference to this specific power as to permit of its exercise, and the very point of the decision was that the public had this right of resort to plaintiff’s premises by his own dedication, even including colored persons, upon payment of the prescribed fee.

Judge Cooley supports the legality of laws regulating places for public amusement, such as theaters, etc., upon the' ground that they are properly the subject of police regulation, as they are generally licensed by the state or municipality wherein they exist. See Cooley on Torts, 285. But I have failed to observe any statute in this state which attempts to limit the price which a-theatrical manager shall be allowed to charge for admission to his entertainments. Proper police regulation and inspection, to the end that peace and good order may be obtained and public morals reasonably protected, is one thing, while a power to limit compensation is another and far greater and more dangerous power, and the two powers are not necessarily co-existent. The latter power is not only a dangerous one, but it is not called for by the same principles which permit, and, indeed, demand the exercise of the former under a general right to regulate the manner, within reasonable rules, in which a man shall use his property so as not to improperly interfere with the proper enjoyment by his neighbor of his own property, or so as not to injure the public health or morals, and in order that proper safeguards may be observed for escape in times of fire.

In the King case Judge Andrews said: “ The principle stated by Waite, Ch. J., in Munn v. Illinois, which received the assent of a majority of the court, applies in this case,” the principle being that where one devotes his property to a use in which the public have an interest, he, in effect, grants to the public an interest in such use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. There was nothing in the case in this court which affirmed the correctness of the doctrines of the Munn case, as applied to the facts upon which the decision in that case was based.

In Buffalo East Side Railway Company v. Buffalo Street Railway Company, supra, both parties were corporations. Huger, Ch. J., said: It was unnecessary to discuss the proposition with much fullness, as it was conceded by the appellant that the authority of the legislature, in the exercise of the police power, could not be limited by provisions in contracts between individuals or corporations, and the contract between the parties as to the rate of fare was held subordinate to the legislative power to regulate the fare to be charged by the corporations.

The Munn case proceeded upon the principle that the parties had devoted their property to a public use, because the productions of “ seven or eight great states of the west” had to pass through their elevators for transhipment into vessels on their way to “ four or five states on the sea shore,” and that thus they had a “ virtual ” monoply of that business, which created a right on the part of the state to regulate or limit the amount of their compensation for such use. It was placed on the theory of an implied grant on the part of the owners of such property to the public to thus limit the compensation, and such grant was implied because the property was thus devoted by the owners to a public use.

Two factors seem to have entered into the proposition as developed by the court, one of which was the extent of the business, and the other that in its performance there was a “ virtual ” monopoly. The combination of extent of user and so called virtual monopoly seems, in the mind of the court, to have had the -effect of clothing the property with this public interest, and hence to have imposed upon its owners the necessity of submitting to the limitation of their compensation. It has never been carried to ■any such extent in this state. Various instances of the application of these principles were cited by way of illustration, and it was asserted that no new principle of law was created, but simply an application of an old principle to a new and different state of facts.

The learned chief justice, who delivered the opinion of a majority of the court, after citing these instances, thus continued: “ 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 hackney coachman, pursues a public employment and exercises a sort of public office, these plaintiffs in error do not.” Therefore, it was held that the business done by the owners of the elevators or warehouses was such as to clothe their property thus used with a public interest, and it ceased to be juris privati only.

I have examined, with very great care and attention, the various authorities cited by the court as illustrations of the principle laid down, and, with great diffidence, I am compelled to say, as the result of such examination, that it seems to me they do not justify. the application of the principle to the case then before the court. See Tiedeman on Limitations of the Police Power, 230.

If it be assumed that when one devotes or dedicates his property to a public use the public then has an interest in such use,- and that, therefore, his compensation may be limited by law, still I deny that such devotion or dedication is made merely because the owner has embarked his property in a business in which large numbers of the public are interested in its use; and I also deny that any siich person has a virtual or any monopoly in the business, without a grant thereof from the sovereign power, merely because the property is conveniently'situated for the business, and it would cost a large amount of money to duplicate it. So long as every one is free to go into the same business, and invest his capital therein with the same rights and privileges as those who -are already engaged in it, there can be no monopoly, in the legal acceptation of that term, virtual or otherwise.

I contend that, within the subject now under review, the meaning of the phrase, devoting one’s property to a public use,” as evidenced in the cases cited by the learned chief justice, and also in other cases in this state, is that such devotion or dedication is made, when by reason of it the public thereafter have a legal right to resort to the property, and to use it for a reasonable compensation, or for such as the law provides, or else, where some privilege or right is granted by the government, in which case the right of limitation is based upon and is really a part consideration for the grant.

In the one case the legal right to resort to and use the property by the public, so long as the owner chooses to remain in the business, springs from this dedication, and it is the criterion that is to decide the question whether the property has or has not been thus dedicated; and this right does not spring into existence merely because the businesss is such as interests a great number of the public, or because it is of large extent, or because there is no other property at that place which is or conveniently may be devoted to the same kind of business ; while, in the other case, the right of limitation exists because some privilege or franchise has been granted to the owner by the sovereign power, an acceptance of which carries with it the burden of submitting to the demand for the service. As has been said, the right to regulate places of public amusement, such as theatres and the like, comes from another branch of the police power, and, as I believe, does not extend to the power to limit prices. The right to make use of the owner’s property, by reason of a dedication, has been held to have been created in the exceptional cases of a common carrier, the keeper of a common inn, and a common or public wharfinger, and perhaps, in some others. These are exceptional cases, for they trench upon the well grounded principle that no man can be compelled to enter into business relations with another unless the party carrying on the business shall have received some privilege, right or franchise from the sovereign power, when such compulsion may be annexed to the grant. The principle should not be extended. To include within its grasp the case of a warehouseman who has no privilege from the sovereign power, but simply builds bis warehouse on the shores of a navigable stream, and upon his own property, would be to overturn cases adjudged in this court and regarded as the law for many years past. The same is true of the owner of an elevator, who receives nothing from the state. See Wetmore v. Atlantic White Lead Co., 37 Barb., 70; Wetmore v. Brooklyn Gas Light Co., 42 N. Y., 384.

In most of the cases cited by the court in the Munn case the right of limitation springs from a license or privilege awarded by the government, and this right of regulation or limitation is en-grafted on or inheres in such license as a condition of the exercise of such privilege. Thus, hackmen and cartmen have the privilege to stand in the public streets in exercising their calling, and the public has the right, in return for such license, to demand their services on tender of proper compensation. The same is true as to ferries, which are but parts of the highway, Mayor v. Starin, 106 N. Y., 1; 8 N. Y. State Rep., 655, and the right to establish them rested exclusively in the crown or, in this country, in the people. Consequently, when established in that way, the right of regulating or limiting the tolls remained in the sovereignty granting the license, and was exercised accordingly.

The ancient right to regulate the toll which millers should charge rested on the right, at common law, which the lord of the manor had to compel all his tenants to grind their corn at his mill, and no one could set up a mill but by his license or that of the crown, and with such license went the right of regulation as to the tolls to be received. See Cooley on Constitutional Limitations, 736; 15 Yiner’s Abr., 398, 399. As to the interest on money and the right to regulate it, it was by the common law prohibited to any one to take any interest for the use of money, and subsequently, when Parliamen t altered the common law, it simply allowed interest to be taken up to a certain percentage and upon certain terms. Tiedeman on Limitations of Police Power, § 94. All the instances above cited are commented on in the very able dissenting opinion of Mr. Justice Field in the Munn case (concurred in by Mr. Justice Strong), and the same reasons for the exercise of the power to regulate these different branches of business are therein stated in a much more full and complete way than I have done.

As is said, there can be no legal objection to the power to direct the weight of a loaf of bread, for that is a mere police regulation, interfering with no man’s real liberty, and it is the same as if the length of a yard were declared by law or the weight of a ton. But I deny the right of any legislature in this country to limit the price for which an individual baker shall sell his bread per loaf, or the price per ton for which a coal dealer shall sell his coal, or the price which a tailor shall charge for his coat, or the shoemaker for his shoes. A common carrier exercises, it has been stated, a kind of public office, and when a man devotes himself to such a calling, and holds himself out to. the public as a common carrier, he thereby grants to the public such an interest in his business that each individual has the legal right to demand the carriage of his property by the carrier, upon payment or tender of a reasonable compensation for carriage, in the absence cf a legal regulation thereof. Allen v. Sackrider, 37 N. Y., 341. He thus becomes a common carrier because of this dedication to the general public, and this legal right of the public to demand this service springs from such dedication. The same is true of a public wharfinger or the keeper of a common inn. They were all called “ common ” in their several occupations, and were common because they held themselves out as such to the public, and, as was said in some of the old books, entered into a general contract with the whole public to do the work, and, hence, arose the right of the public to call upon them to fulfill this contract. Mo such right of access to the premises of defendants exists, and no such right to demand the use of then property can be, or,, as I understand, is pretended. But unless the innkeeper was the keeper of a common inn, or the carrier a common one, or the wharfinger was a public one, no matter what the extent of their business, or how large a number of the public were entertained by them, as the public had no right to resort to their premises or to demand transportation for or the care of their goods, or entertainment at their house, the right of regulation did not exist as to the compensation they should receive. The cases are, as has been said, exceptions to the general rule, that no man can be compelled to have business relations with another. See Tied man on Limitations of Police Power, § 92, p. 226.

There is no satisfactory ground, in my judgment, upon which the power may be based to regulate or limit the price of transportation by a common carrier, or the price of entertainment by an inn-keeper, who is a private individual and who has received no privileges from the state of any kind. To say that the carrier (while a private individual) holds a kind of public office, and, therefore, his prices should be limited, is not, as it seems to me, a very accurate description of his attitude to the public. He holds no office, public or private, within any fair meaning of such word, and there is no reason, in justice or common sense, why his compensation should be limited by law, which would not hold good in the case of every individual dealing with the public, and holding himself out as ready, willing and eager' to sell his goods to all ■comers.

The rule as to private individuals who happened to be common carriers or inn-keepers, etc., was established in the earlier days of the law, and it was regarded by Lord Hale, as most proper, that individuals who followed such callings should be placed under state supervision and control. The habits, customs and general intelligence of the people of those days were far different from those of to-day, and laws which might possibly be pardoned on account of ignorance, sparseness of population, difficulties of communication and rural and unsettled habits of life, can have no such justification in our times.

It must be constantly borne in mind that in those days the theory of a paternal government, which was to watch. over and protect the individual at every moment, to dictate the quality of his food and the character of his clothes, his hours of labor, the amount of his wages, his attendance upon church, and generally to care for him in liis private life, was almost at its height.

The famous statute of the fifth of Elizabeth, chapter 4, concerning laborers, was in full force when Lord Hale wrote. Lecky’s England in Eighteenth Century, vol. 6, 233. That statute assumed to regulate the existence and determine the number of the artisans in the whole country. It provided how long one .should work as an apprentice; how many there should be in proportion to journeymen; where they should live; under what circumstances move to another neighborhood; how many hours they should labor, and for how long a time a journeyman should be employed; and, finally, it provided that wages should be assessed for the year by the justices of the peace, who were also directed to settle all disputes between masters and apprentices. By an act of the first of James I, chapter 6, the above act was extended by giving to the justices power to fix wages, not only of journeymen and apprentices, but of all kinds of laborers and workmen.

During this time, also, there were statutes making it a felony to export wool from England, and the exporter of sheep, rams or lambs was liable to imprisonment, the forfeiture of all his property, and to have his left hand cut off for the first offense, and for the second offense to be adjudged a felon, and to suffer death accordingly. See 8 Eliz., ch., 3; 13 and 14 Chas., II, chap., 18. Provisions were extant forbidding exportation of hides, raw or tanned leather, and many other things, and all for the supposed benefit of the kingdom or the various interests in whose favor the legislation was enacted. Smith’s Wealth of Nations, by McCulloch, 292, et seq. Laws were then in force which regulated down to the minutest detail the manner of life, and the texture of the dress, and the costliness thereof, and the variety of dishes upon the tables of the people; special laws determined how much land of an estate should be plowed, and how much left in pasture; how much was to surround a laborer’s cottage; how many sheep should be supported on a farm. England in the Eighteenth Century, Lecky, vol. 6, 231, et seq.

In speaking of the above-mentioned statute of Elizabeth, the late Mr. W. Stanley Jevons, in his little work on “ The State in Relation to Labour,” in the English Citizen Series (at page 34), says, that it was a monstrous law, and that, according to the opinion of historians, it represented the triumph of the craft guilds, that is, the medieval trade unions, and that in operation it was, there is reason to believe, little more than a dead letter. In- the same work the author says, that the justification of state interference in matters of private concern, as in the inspection of certain kinds of food, etc., lies in the fact that government may properly interfere, to prevent abuses in those special cases where it is impossible, or at least difficult, for the buyer of goods to verify their character for himself. Inspection of factories is justifiable for the purpose of thereby protecting the health and morals of large masses of the people who labor in them, and who, as experience has shown, are unable' to protect themselves. The work is a most able treatment of the question as to how far it is proper to interfere in the general industrial department of the country. It is needless to say that such a law as is under consideration here, does not fall under any of the conditions in which state interference is regarded as proper.

But it was during the times when laws such as I have above alluded to were in force that Lord Hale lived and wrote. He was, without doubt, a very great lawyer, but he wrote regarding the law as it then existed, and when views of governmental interference with the private concerns of individuals were carried to the greatest extent; and he was naturally and necessarily affected by the atmosphere of the times in which he lived; and his views as to the policy and propriety of laws involving an interference with the private concerns of the subject, were, of course, colored by the general ideas as to the proper function of government then existing. This great magistrate, it will be remembered, was a firm believer in the existence of witchcraft, and presided at the trials of old women accused of such crime, and condemned them to death on conviction thereof.

I do not mention this as any evidence against the ability, integrity or learning of this upright man and able lawyer; but it is entirely conclusive of the truth of the statement that all men, however great and however honest, are almost necessarily affected by the general belief of their times, and that Lord Hale was not one of the few exceptions to this rule. I have spoken thus somewhat at length upon this subject, not for the purpose of attempting to show the incorrectness of the rule laid down by Lord Hale regarding common carriers, innkeepers, wharfingers, etc., who were, at the same time, nothing but private individuals, having no privilege from the state, but I have thus spoken for the purpose of showing that, because the rule is correctly stated in those eases, no reason exists in such fact for the extension of the principle of that rule to other cases, and, by doing so, go back to the seventeenth or eighteenth century ideas of paternal government, and thereby wholly ignore the later and, as we firmly believe, the more correct ideas which an increase of civilization and a fuller knowledge of the fundamental laws of political economy, and a truer conception of the proper functions of government have given us at the present day. Eights which we would now regard as secured to us by our bill of rights against all assaults, from whatever quarter, were in those days regarded as the proper subjects of legislative interference and suppression. The fact that certain rules of the common law have come down to us unimpaired, although based upon a view of the relations of government to the people which obtained in the seventeenth century, should certainly furnish no reason for extending those rules to cases which, but for such extension, would be regarded as clearly within the protection- of the constitutional limitations contained in our bill of rights. I think that no further violation of the general rule of absolute liberty of the individual to contract regarding his own property should be sustained by this court. This violation would, have to occur if we should hold legislation of the kind under consideration valid.

Tiedeman, in his work already cited, at the end of § 93, on page 238, in speaking of Lord Hale and his observations, and generally in regard to this power, says: “ Lord Hale, therefore, cannot be cited in support of the doctrine that the state may regulate the prices charged in a business which, from the circumstances, becomes a virtual monopoly. And even if he did justify such regulations, his opinions can hardly be set up in opposition to the rational prohibitions of the American constitution. By all the known rules of constitutional construction, the conclusion must be reached that the regulation of prices in such a case is unconstitutional ; and while the common law is still authority for the propriety and justification of laws which antedate the American constitution, it cannot be cited to defeat the plain meaning of the constitution in respect to laws subsequently enacted.” See, also, same author, p. 588.

Judge Cooley, in his Constitutional Limitations (5th ed.), at page 739, gives four heads under which such regulations are admissible, and such a case as this comes under none of them. He says, in summarizing his own views as to when the property of the citizen could be said to be affected with a public use or interest, so that prices might be limited, that they were in four classes: (1) When the business is one, the following of which is not of right, but is permitted by the state as a privilege or franchise; and under this head he includes such cases as lotteries, giving shows, keeping billiard tables for hire, etc. (2) Where the state, on public grounds, renders to the business special assistance by taxation or otherwise. (3) Where, for the accommodation of business, some special use is allowed to be made of public property or of a public easement. (4) Where exclusive privileges are granted in consideration of some special return to be made to the public. Possibly, he says, there may be other cases. He does not include such a case as this or the Munn case, though tire latter was under criticism in this very definition.

That learned author, in speaking on this same subject, says, in same volume, pages 737, 738, 739: “ What circumstances shall affect property with a public interest is not very clear; the mere fact that the public have an interest in the existence of the business, and are accommodated by it, cannot be sufficient, for that would subject the stock of the merchant and his charges to public regulation. The public have an interest in every business in which an individual offers his wares, his merchandise, his services or his accommodations to the public; but his offer does not place him at the mercy of the public in respect to charges and prices. If one is permitted to take upon himself a public employment, with special privileges, which only the state can confer on him, the case is clear enough,” etc.

The case put by Lord Hale of the owner of a private wharf, which was the only one in a new port, being properly subjected to a limitation of his charges, because of an alleged monopoly, is spoken of by Cooley, and explained as grounded upon the use of public property under a license, as the title to the soil under the water in navigable streams is in the sovereign, and its use by a private person upon which to build a wharf is under the license of the crown.

Judge Cooley then says, at page 739 of his Constitutional Limitations, as follows: “If, then, by public permission, one is making use of the public property, and he claims to be the only one with whom the public can deal in respect to the use of that property, it seems entirely reasonable that his business is affected with a public interest which requires him to deal with the public on reasonable terms.”

The right arises from the use of the property of the public by the license of the public,-or, in other words, by the license of the crown, and thus the right of limitation attaches to such user. It does not spring from any assumed monopoly arising simply from convenience of location, or because no others are engaged in the business, but only because of the user of public property by the license of the crown or the people.

There is not the slightest proof in this case that the warehouse is built below low-water mark in the Bast river, on the Brooklyn side, and so on land the title to which may be in the state. If it be thus built, then, perhaps, the state could compel its removal; but it has done or attempted nothing of the kind, and does not seek to do it by this legislation; nor is there any pretense of the limitation of price being placed as a condition of the continued user of the land by the owner' of the warehouse. There is no grant of any right by the state, nor of any privilege or franchise, upon which to base a claim of the power to limit the price for the user of the warehouse.

Both these able writers, whom I have quoted, are plainly of the opinion that the Munn case cannot be upheld as within any branch of the police power, as that power is limited under our constitutional government; and I think that, notwithstanding the great respect which is entertained for the Federal supreme court, the doctrines of the Munn case have never received the unqualified approval of the profession. I think, in order to follow it in these cases, we should have to overturn cases and principles decided in this state after mature deliberation and upon the most impregnable grounds.

The Munn case was published in 16 American Law Register (N. S.), 526, in 1877. A note is added, at the end of the report, which is entirely adverse to the doctrines of the case, and it is stated that no other court had ever held that a warehouse, situated as was that of the plaintiff in error in that case, was private property which was affected with a public use. A private individual’s property was supposed to be affected by a public use, as stated in the note above referred to, when the public had a somewhat greater or less proprietary right therein, as in a public stream over which a person established a ferry, or in the right to a fishery, etc.; and the right to regulate the business of a common carrier it was thought might be placed on the ground of the use the earner made of a public highway, maintained more or less directly by the taxation of the people.

Commenting on the Munn case, it is said, in 2 Hare’s American Constitutional Law, 771: “ Such legislation may be eminently just as regards companies which have been chartered by the state or clothed with the power of eminent domain, because grants of this description not infrequently preclude the competition which is the security against overcharge in trade, but seems questionable when the way is left open to individual enterprise,” etc.

There is some evidence, also, that the decision in the Munn case has not been accepted without criticism by lawyers, even in the land from which we derive our common law, upon the principles of which the learned chief justice claimed to rest it. Mr. Bryce, one of the most accomplished of English lawyers and statesmen, and the author of the late great work on “ The American Commonwealth,” thinks that the decision was, perhaps, more the effect of public opinion in its action upon the court than of a strict adherence to legal principles, and while, as he says, not presuming to question its correctness, yet adds that it evidently represents a different view of the sacredness of private rights, and of the powers of the legislature, from that entertained by Chief Justice Marshall and his associates. See 1 Bryce’s American Commonwealth, 2 vol. ed., p. 267; 3 vol. ed., p. 365.

Upon the question of what is meant by the expressions public use and virtual monopoly, when found in the cases upon the subject under consideration, that of Allnuit v. Inglis, as Treasurer, etc., of London Dock Company, 12 East, 527, is a most instructive one. The defendants were the owners of certain London docks, and they had received from Parliament the right to store foreign "wines in their warehouses connected with such docks, in bond, 'until their sale, and the payment of duties thereon. This license was, at that time, exclusive, as none but the owners of these docks had the right to receive the wines on storage. This gave the importers of such wines the legal right to resort to the docks and warehouses for unloading and storing, and hence the court held that their owners had devoted them to a public use. The court said that, “if the crown should thereafter think it advisable to extend the privilege ” (of warehousing these foreign wines in bond), “ more generally to other persons and places, so far as that the public will not be restrained from exercising a choice of warehouses for the purpose, the company may be enfranchised from the restriction which attaches upon a monopoly,” etc.

And Ellenborough, Ch. J., 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. It is seen that this was a case where Parliament, in the first place, granted a monopoly, and, as a consequence of an acceptance thereof by defendants, the public had a right to resort to the warehouse for the purpose of storing the wines in bond; and, by thus accepting the monopoly, the defendants dedicated their property to a quasi public use, because the public, by virtue of such monopoly and for such purpose, had the right to resort to their warehouses and to demand the storage of the wines.

The facts of the case must be taken into account whenever expressions are used of a somewhat general nature; and it is evident that when the English judges and courts spoke of an owner of property devoting it to a public use, or one in which the public had an interest, they meant that by reason of such devotion the public thereafter had a right to resort to the place where the property was, and a legal right to demand its use on payment of a reasonable compensation. And the cases they were discussing, and in which they made use of the term “virtual monopoly,” and where they held the owners had devoted their property to a public use, were cases where such .owners were receiving from the government some special privilege or franchise, by accepting which they did thereby so devote their property. Unless the public had that right of resort and that right of user, upon payment of such compensation, there was no devotion of the property to a public use within the meaning of this expression, which, ex vi termini, means a devotion to the public use to such an extent that the public thereby has a legal right to resort to the premises and to demand such use upon payment or tender of reasonable compensation.

The case of Bolt v. Stennett, 8 Durnf. & East, 606, is an illustration of the same principle. The crane was set up by its owners on a public quay (either by the express or implied license of the government), to which the public had the right to resort, for the purpose of loading and unloading vessels, and, being so set up, and under such circumstances that the public had the-right to make use of it, the compensation, therefore, was properly limited to a reasonable sum.

In this state neither the amount of work done by the owner for the public in the use of his property, nor the numbers of the public who use it, nor the convenience of situation of the property, nor all combined, make the use a public one within the meaning of the term as used in this discussion. Where the owner of property holds himself out to the public as the common servitor thereof, as in the case of a common carrier or innkeeper, or wharfinger (which, as I have said, are ancient exceptions to the general rule), or where he has received some privilege or franchise from the government, then he has granted to the public an interest in his property as to its use, or he accepts the privilege or franchise upon such conditions as the government may annex to its exercise. And when he opens his premises to and invites the public generally to repair to them for the purpose of a resort for some kind of public entertainment or amusement, then he, for the time being at least, brings such property within the exercise of the police power as applied to regulations for the public health or morals, as in the late case of People v. King, in this court, 110 N. Y., 418, already cited. Even the law, referred to in the King case, made no provision as to the amount of compensation to be demanded for entrance to the premises.

The decision in the Munn case entirely changed the common law character of the warehouses or elevators, and transformed the business from a private to a public one, and this transformation was held to have taken place simply because of the extent of the user of the property and the convenience of situation The change being effected, the right to demand the services of the plaintiffs in error was assumed without argument; and such right existing, the right to limit the charge was evolved therefrom.

The fact that the owners of the property had received no license or privilege from the state, had been endowed with no legal monopoly, virtual or otherwise, were neither common carriers, nor public wharfingers, and were simply using their private property in a business which, in its real nature, was as strictly private as that of the large houses of A. T. Stewart, Claflin & Co., and hundreds of other large firms in Hew York and elsewhere, had no effect with the court in determining this question of public use. The business was placed on the same foundation as a common carrier, and the right of the public to compel business relations was assumed. I am confident that the courts of this state have never gone to any such length in determining when property is devoted or dedicated to a public use.

What is alluded to in the hooks as a monopoly, or as a “ virtual ” monopoly, is, in either case, a right created by license from the crown or by virtue of an act of parliament. See 4 Bl. Com., 159; 4 Stephens’ Com., 291. The important fact is that it emanates from the sovereign power either by license or by legislation, ■ and in both cases, either as an exclusive or a virtual monopoly, it is a privilege or immunity granted to an individual or corporation, ¡and, of course, upon such conditions as to compensation, etc., as the licensing power may. choose to impose. Thus in the case in 12 East (supra), it was stated that the dock owners would have had a virtual monopoly of the storage business if the choice of the public as to where to store its wines were so far restricted, by the government licensing only a few, that its freedom of choice practically did not exist; but that if the license should so far become general that there was practically, a fair freedom of choice, then there would be no monopoly, and the owners of the warehouses would be free to charge such rates as might be agreed upon.

It was nowhere stated or implied that there could be an exclusive or a virtual monopoly grounded on the fact of convenience of situation, of the costliness of the erections, or a mere combination of owners to raise prices. Such combinations might be illegal, and they might subject the persons who entered into them to prosecution as violators of the law, but that would confer no right to regulate or limit the amount of compensation which a private individual might charge for the use of Iris property, where he had not devoted it to a public use, as I understand the meaning of that term, and where he had not received any privilege or immunity from the state, upon the exercise of which the right of limitation’ might be imposed. The virtual monopoly, in the case in East, rested wholly upon the grant of the privilege of bonding given, by the crown.

Finally, and much later than the Munn case, the supreme court, in defining just what it did decide in that case, said (per Mr. Justice Miller), that the Munn case presented the question whether one engaged in a public business, m which all the public had a right to reguire his service, could be regulated by acts of the legislature, in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such services, and the court answered such question in the affirmative. See Wabash R. R. Co. v. Illinois, 118 U. S., 557, 569. The court seems, therefore, to have assumed in the later case that the Chicago elevator owners were bound to place their elevators at the service of the public upon demand, and could not, so long as théy remained in the business,' • refuse to do the business required of them, and that the Munn case simply decided that principle. The elevators were made public elevators, not by the constitution or laws of Illinois, but by the facts of that case.

The Slaughter-house cases, 16 Wall., 36, decided that the act of the Louisiana legislature, although granting an exclusive right or prmlege as to the slaughtering of cattle, and designating the place for it, was yet valid as a police regulation as to such business, and came under the description of a health regulation, and did not violate any provisions of the Federal constitution. But, if the mere extent of the use of one’s property by the public, in the particular business in which he is engaged, is to stamp that use as a public one, and if he is, therefore, to be held to have devoted his property to a public use, the power of the legislature may be imposed upon a vast number of employments which have heretofore been regarded .as wholly private, although at the same time very extensive.

A man may set up scales for weighing merchandise by the wholesale, upon his own lands, and announce his readiness to weigh the merchandise of all comers upon such terms as they may agree as to compensation. As soon as his business reaches proSortions large enough to enable the legislature, in its discretion, to eclare thac he has devoted his property to a public use, that moment it is clothed with the power to limit him in his compensation for the use of his own property. It is in vain for him to say that he has asked and received nothing from the state by way of any special privilege or right, and that he has a right to charge what he will for the use of his own property, and the public has no right .to demand his services; the answer would be, you have devoted your property to a public use because great numbers of the public desire to and do use your property for the purpose that you have offered it, and it is entirely immaterial that the public has no legal right to demand such use. As long as you are in the business you must submit to be regulated by the power of the state.

If a man should erect on his own land a large steam mill to grind corn, and, by reason of his superior facilities, large numbers of persons should resort to it for the purpose of having their com ground, has he devoted his property to a public use because of the extent to which the public make use of his property for the purpose for which he erected or fitted it up ? So long as no person has the right to make use of such property against the will of the owner, and so long as he neither exercises nor receives any special privilege from the state, can it be plausibly maintained in this state that it can impose upon him a limitation as to the amount which he is to receive for the use of his own property ?

Nothing like this question was discussed or decided in Township etc., v. Beasley, 94 U. S., 310, as the only controversy there existing was whether the particular purpose for which the bonds were in that case issued was covered by the Kansas enabling statute. The validity of that statute was not discussed or decided. But there are some states where a riparian owner has been given the right to build dams for the purpose of running mills by water power, and to overflow thereby the lands of others, upon payment of the damage done, and it has been held that the overflowing of the land was for a public purpose, i. e., for a mill, and that it might be done under the authority of the legislature upon due compensation being made. Many of such statutes are set forth in the note to the very learned opinion of Mr. Justice Gray, in Head v. Amoskeag, etc., Company, 113 U. S., 9, in which case it was held by the Federal court that such a statute violated no clause of the F'ederal constitution; but the act was upheld in that court, not as a proper exercise of the right of eminent domain, as taking property for a public use, but it was considered as one regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed.

This court has never gone to any such length, however, in determining what was a public use, within the taxing power or within that of eminent domain. In Hay v. Cohoes Co., 3 Barb., 42, 47, it was stated that no exercise of any such assumed right (that of eminent domain) had ever been attempted by our legislature in favor of mills of any kind, and it was said that sites for steam-engines, hotels, churches and other public conveniences might as well be taken by its exercise.

In Weismer v. Village of Douglas, 64 N. Y., 91, which was substantially a mill case, where the defendant was authorized to issue its bonds to raise money to pay a subscription to a corporation which was expected to run a saw-mill on the Delaware river, this court held that the bonds were not issued for a public purpose, and the property of individuals could not be taxed to raise money to pay the principal or interest on such bonds. The purpose was declared not to be a public purpose, because (among other reasons) the public had no right to go to the mill of the corporation, when completed, and demand the right, to have logs sawed into lumber there. As the corporation could refuse, at any and at all times, to saw the lumber for any particular person, or for all persons, the business of building or running the mill was not a public purpose or use; and, of course, property thus used was not devoted to a public use, and taxation for it was illegal. And In re Application of Eureka Basin, etc., Company of Long Island, 96 N. Y., 42, the company was organized to (among other things) acquire certain swamp lands and erect thereon basins, docks, wharves and piers, and warehouses for storing goods from vessels, etc., and it desired to obtain certain lands by the exercise of the power of eminent domain, upon the assertion that the use contemplated was a public one. This court held that as the public did not have the right to use the warehouses, or to direct, in any way, their management, and the property remained under private ownership, it was not a public use to which it was to be put, and, hence, no right existed to exercise the power asked for. The court said: “ The fact that the use to which the property is intended to be put, or the structure intended to be built thereon will tend, im' cidentally, to benefit the public by affording additional accommodations for business, commerce or manufactures, is not sufficient to bring the case within the operation of the right of eminent domain, so long as they are to remain under private ownership and control, and no right to their use or to direct their management is conferred upon the public.”

These two cases, in our own courts, illustrate the matter of a public use when that term has been employed with reference to the two great power§ of taxation and eminent domain, and they show that, in circumstances such as therein stated, the fact' that the public had no legal right to resort to the premises and to demand the use of the owner’s property on payment of reasonable compensation was fatal to the claim that such use was of a pub-, lie nature, or that the property was in such case devoted to a public use. There is no distinction of principle between the cases, and whenever it has been claimed heretofore that property has been devoted to a public use, the term has expressed the fact which existed ; that the public had a right to resort to the premises, and to-.use the property, or to demand transportation, etc., upon reasonable compensation being paid or tendered. And the case of a steam mill, which I have instanced, would not in this state be regarded as in the least degree a property which was devoted to any. public use whatever, although its presence might greatly tend to benefit and accpmmodate the public.

The same principle has been decided in Vermont in Tyler v. Beacher, 44 Vt., 648, and the opinion of Mr. Justice Wheeler is referred to as a very able examination of the subject of what is a public use. If the power were as broad as is sometimes claimed,, so that every sovereignty might regulate the conduct of its citizens towards each other in this way, when necessary for what the legislature should determine to be the public good, and could regulate the manner in which each person should use his property, to the extent of making this limitation, then the whole power of legislation rests with the legislative department, unrestrained by any constitutional prohibition, and it is but necessary for the legislature to decide that its proposed enactment is for the public good and general welfare, and such decision stands as a conclusive reason for, and justification of its action. This cannot be and is not true. There are limitations to this doctrine other than the mere will of the legislature and its decision as to what constitutes the public good or the general welfare; these limitations are to be found in our fundamental law, and have been frequently discussed, and limitations have been placed upon the exercise of such power by the decisions of this court in carrying out the provisions of the constitution. For example, see Wynehamer v. People, 13 N. Y., 378; In re Jacobs, 98 id., 98; People v. Marx, 99 id., 377; People v. Gillson, 109 id., 389; 16 N. Y. State Rep., 185.

The clause in our constitution that no person shall he deprived of life, liberty or property without due process of law (Const., art. 1, § 6), is to have a large and liberal interpretation, as this court has said in so many words, and as is evidenced by the above cited and other cases. The citizen is thereby protected against any unlawful invasion of such rights, or of any essential incident to the enjoyment thereof. Many instances of the benefits of this provision are cited in those cases, and in the dissenting opinion of Mr. Justice Field in the Munn case, which, it seems to me, is a most masterly examination and clear statement of the principles which I believe this state has always stood by and protected through its courts.

These cases hold that the liberty mentioned in the bill of rights is not the mere right to be free from personal restraint; it includes a right to labor and to receive the fruits of one’s labor (which includes the price for the use of one’s property), in all ways which are not harmful to the welfare, the health, the happiness of others. The whole reason for the existence of the police power rests in the theory that one shall so use his own property as not to interfere with the proper use by others of their property, and so as not to interfere with the public health, morals or general welfare. The last words do not give "power to the legislature, arbitrarily, to determine the question what is for the general welfare; but such power is subject tó the constitutional restrictions already adverted to, beyond, or in violation of which, the legislature cannot go.

The case of Vanderbilt v. Adams, 7 Cow., 349, was decided by our supreme court in the early part of the century. The facts show a clear case for the exercise of the authority claimed under the act of the legislature providing for the regulation of the harbor of New York. The plaintiff was the owner of a private wharf, such an one, I assume, as is spoken of in the cases of Langdon v. The Mayor, 93 N. Y., 129, and Williams v. The Mayor, 105 id., 419; 7 N. Y. State Rep., 529, as I know of no other kind of private wharf in New York. It was held that the wharf was subject to -the harbor regulations contained in the legislative act, because such regulations were merely an exercise of the police power necessary to prevent confusion and to promote the peace and good order necessary to be observed in a crowded harbor, such as New York was even then regarded. It was held that the city had never, by its grant of the land under water, or of the right to build a wharf, parted with the right which it had received under its charter over the subject matter of the wharves and their regulation.

The difference of title of shore owners on the New York and Brooklyn sides of the East river is discussed in Wetmore v. Atlantic White Lead, Company, 37 Barb., 70, and referred to and recognized in the case of Same Plaintiff v. Brooklyn Gas Company, 42 N. Y., 393. And it was distinctly stated in last cited case that the state did not, by its former acts, grant any right or privilege or franchise to the owners of the land under water, upon which could be based the right to compel the owner of the land to consent to its uses by the public.

The License Cases, 5 How., U. S., 504, at 583, decided only that regulations for the sale of intoxicating liquors were valid, and did not infringe any provision of the Federal constitution. Taney, Ch. J., in speaking of the police power of the state, simply said that it was of the same class as any other power inherent in every sovereignty. There was no pretense of a claim that it was a sovereign power uncontrolled and unlimited by the clauses of the constitution- providing for the liberty of the citizen. When the state legislates it does so by virtue of the power of sovereignty, which is, as the learned chief justice said, the power to govern men and things within the limits of its dominion.

It has been frequently said that the police power rests for its foundation upon the general duty of each citizen to so use his property as not to interfere with the fair and proper use by his neighbor of his property, and to protect and guard the public. health and morals. The power to regulate or limit the price for the use of property situated like that in this case comes within no fair definition of suqIi power, nor does it belong to the category of things that should be regulated in order that another may properly enjoy his own property, or that the public health or morals may be protected.

An examination of the cases now before us, in view of these observations, will show, as I think, that these defendants have never devoted their property to a public use, so that the public had a right to require their service, and that they have received no immunity or privilege from the state -upon which this claimed right of limitation can be imposed as a condition to its exercise.

These defendants are the owners or lessees of certain elevators or warehouses, used in the harbor of New York for the purpose of transferring grain from one vessel to another, from canal boat to steamship, or from boat to rail car, or for the storing of grain. They are not a corporation, nor have they received any special privilege from the state in regard to their business, nor are they engaged in a business which is not absolutely free to anyone who wishes to use his property in the same way. They have no special right to use the waters within the jurisdiction of the state in a manner not equally open to every citizen, not only of the state, but of the United States. The state furnishes them no special facilities for the carrying on of their business, and they are under no obligations to it for any protection to them business or property, other than such as as given by, and is due from, the state to all the inhabitants thea’eof, viz., the duty of protection to their persons and property while they are lawfully engaged in their occupations. They are under no legal duty to engage in such occupation for all who may come and ask thean. They have the perfect right to refuse to elevate, by means of their elevators, a bushel of grain for A, and, at the same time, they have the right to use such elevators to elevate the grain of B. They have the equal right to refuse to store the grain of any or of all persons. I fail entirely to see how such a business can be said to be one in which the public have an intea’est in the way of a right to limit, through legislation, the price for which such business shall be done.

The defendants are situated entirely different from the elevator owners in Chicago, whose rights were adjudicated upon in the Munn case. The canal boats loaded with grain, after their passage down the Hudson river, seek the owners of the storehouse in which to store the same until wanted, or the floating elevator is sought for and found, and employed to unload the cargo of the boat into the hold of the steamship. There are large numbers of warehouses and elevators which are in no way connected with each other. In neither case is there anything like what can be called a moaiopoly, virtual or otherwise; the utmost stretch of the imagination cannot so regard it. The warehouses are piivate property, and no one can enter upon thean without the coaisent of their owners. Wetmore v. Atlantic White Lead Co., 37 Barb., 70; Wetmore v. Brooklyn Gas-Light Co., 42 N. Y., 384.

Still more- plainly is this the case with a floating elevator. It is not a common carrier, or wharfinger, or warehouseman. It has no monopoly, virtual or otherwise, as to facilities of place, convenience of situation, or license or privilege from the state. In the nature of the business of both the warehouseman and the elevator owner it is wholly private. Now, in what is the case made less strong when, instead of the scales or the mill, heretofore instanced, an elevator or warehouse is substituted? It is built by individuals or private partnerships, and occupied by them or leased to other private individuals or partnerships. It is built on lands owned by individuals, or it is in the substantial form of a boat, and floats on the public waters of the state, and its owners have received no kind of license, privilege or immunity from the state, in any way special in its nature, or which is not common to all the people of the state. How, then, has the owner devoted it to a public use ? It is claimed that he has done so because the elevator or warehouse is to be used to elevate or store a vast amount of grain which comes from the west seeking transportation through the Erie canal; and because it costs a large amount of money to build such structures, and owing to the 'facility and cheapness with which the elevator does the work, as compared with the labor of individuals, those who own the grain, or those who are interested in its transportation, are compelled to use such elevator if they desire to successfully compete in the business of transportation and in the loading or unloading of such grain. Hence, it is said, a virtual monopoly exists, and the persons who own it are under the regulating power of the legislature as to their compensation. But I deny that there is any virtual monopoly. There was such in -the case in 12 East., supra, because there was no right in any other owners of warehouses to receive the wines on storage, and the right existed in the dock owners by virtue of a special grant from the sovereign. A monopoly in a business where the persons engaged in it have no exclusive privilege, and into which business the whole world is at liberty to enter, and upon entering which they will be possessed of precisely the same rights and privileges as the others engaged in it, is a contradiction in. terms. Loosely speaking, a person or corporation is said to have a virtual monopoly of a business when, on account of its great extent and the facilities it has for transacting it, arising from its large proportions, the article it manufactures or sells substantially takes possession of the market. Such, for instance, is the case in the manufacture and sale of matches. One company does an enormous business, and has almost what is called a monopoly in some parts of the country, arising not from any special privilege or right granted to or exercised by it, but because of its facilities ; and it is, therefore, enabled to make the article cheaper and. sell it cheaper than its competitors. But would anyone suggest that the state has, therefore, a right to limit the price which the company shall charge for matches ? If it be a corporation, indeed, or if it has received any special privilege or right from the state, then conditions may be imposed upon it, although none can be simply because of the greatness of its sales or the number of the public interested in procuring cheap matches.

But when the right of regulation as to compensation is spoken of because the person has a virtual monopoly, the term has heretofore been used as indicative of some special privilege or franchise granted to the individual by the sovereign which results in such virtual monopoly, and the right of such regulation exists by-reason of such grant. Mo monopoly of that kind exists in this case. If it • be said that the effect is the same, the answer is that it is not the same. In the one case the monopoly exists by reason of the action of the government, and no other citizen can come in and devote his capital and energy to such use. In the other the monopoly exists only as long as other citizens choose to keep out of the business, and just as.soon as it is seen that the least degree over the ordinary profit can be realized by an investment in elevator property, just that moment capital will flow into that channel, and probably away from some industry where the average rate of profit has ceased to be made. Thus in one case the result cannot be avoided or in any way altered excepting by the action of the sovereign, while in the other case it may be altered by the action of the ordinary laws of trade.

The effect, while it lasts, may possibly be the same in both cases, but in the one it is arbitrary and dependent upon the government, and in the other subject to alteration according to general commercial rules. But in this case there is no pretense of a monopoly grounded upon lack of ability in the public to compete. On the contrary, the complaint is that the competition has been so fierce and the numbers of those engaged in the business so great that they have combined to fix upon prices below which they would not work, and it is, in reality, the combination of which complaint is made. If the prices for doing the work are higher than is reasonable, owing to such combination, the combination itself may be illegal, see Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 id., 435; and, as has been said, the persons engaged in it may render themselves amenable to the criminal laws of the state, but no power of the state to limit the price for which a person may sell his property, or the use of it, results from a violation of the law against conspiracies or combinations to raise illegally the prices of articles or the charges for services which have a commercial value.

It is said, however, that the defendants have received some privileges or benefits from the state in their business of elevating or storing grain, because the state has built the Erie canal and spent large sums of money for that purpose, and the business of elevating grain into and out of a canal boat, or of storing it, is made much greater than would be possible but for the constant maintenance of the canal by the state; and if the state should cease to maintain the canal the business of transporting grain over it would be wholly destroyed, and, therefore, it must be conceded that the business of elevating grain receives support from the public, and it is only through such support that the business can exist. It is difficult, as it seems to me, to regard this argument seriously. The state, it is thus said, has built a canal, and there are men (not the defendants) who propose to avail themselves of its existence, and to transport merchandise in their boats over its waters.

Before undertaking such transportation, however, they must load their boats or unload them after such transportation is finished, and in the "process of loading or unloading their boats in the public waters of the state they hire the defendants to do the elevating of the cargo. If the canal had not been built there would have been no boatmen with canal boats asking for cargoes, and, consequently, the defendants would not have had the opportunity of loading their vessels, therefore, the state has conferred a privilege upon the defendants by using which they acquiesce in the right of the state to limit the amount of compensation they can lawfully demand for the use of their own property. The mere statement of the proposition, it seems to me, is its best refutation To argue upon it would seem to admit that it is debatable. By reason of the action of the state in building the canal, more frequent opportunities have arisen from which the defendants have been enabled to engage in a certain kind of labor and to invest their capital in certain kinds of property, but not a privilege, immunity or franchise of any description has the state granted to them, even by the loosest construction of language.

The legislation in question is nothing else than an effort, not only to regulate the private business of private individuals, but to limit the amount for which they shall exact compensation for the use of their own property, in which the public has no interest whatever, in the legal meaning of that term. If it is legal in this case, it is legal in any. The legislature can step in and limit the prices of every article of commerce, the product of the field, the mine or the manufactory. There is seemingly no-length to which it may not go, and no home to which this power may not be applied in matters of the most individual and private nature, and all under the guise of legislation for the public good and the general welfare.

It is true that the question of the validity of this law is one of power and not of propriety; and if the legislature, in any case, may have, under any circumstances, the power to limit the compensation which a private individual may receive for the use of his own property, not devoted to a public use, and in regard to which he receives and exercises no special privilege or immunity from the state, then we are bound to suppose such circumstances to exist in the case before the court. We are of the opinion that the legislature has no such power.

There is no foundation for the argument that the elevator owners have a monopoly because they have their charges fixed by the Produce Exchange, which only recognizes as regular the warehouse receipts given by elevator owners or warehousemen who are members of that body. If that be the fact, it constitutes in no view of the subject a monopoly. What has already been said upon the subject, applies in equal degree to such an argument, nor have the defendants thereby received any privilege or franchise from the state.

The disposition of legislatures to interfere in the ordinary concerns of the individual, as evidenced by the laws enacted by Parliament and legislatures from the earliest times, and the-futility of such interference to accomplish the purpose intended, have been the subject of remark by some of the ablest of English speaking observers. Buckle, in his History of Civilization in England, in speaking of the course of English legislation, says r “Every great reform which has been effected, has consisted, not in doing something new, but in undoing something old. The most valuable additions made to legislation have been enactments destructive of preceding legislation, and the best laws which have been passed, have been those by which some former laws, have been repealed.” And again, “We find laws to regulate wages; laws to regulate prices ; laws to regulate profits; laws to regulate the interest of money; custom-house arrangements of the most vexatious kind, aided by a complicated scheme, which was well called the sliding scale, a scheme of such perverse ingenuity that the duties constantly varied on the same article, and no man could calculate beforehand what he would have to pay. A system was organized, and strictly enforced, of interference with markets, interference with manufacturers, interference with machinery, interference even with shops. In other words, the-industrious classes were robbed in order that industry might, thrive.” Buckle’s History of Civilization in England, vol. 1, 199, 200, etc.

The legislation under review is of the same general nature. To-uphold legislation of this character is to provide the most frequent opportunity for arraying class against class; and, in addition to-the ordinary competition that exists throughout all industries, a, new competition will be introduced, that of competition for the possession of the government, so that legislative aid may be given to the class in possession thereof in its contests with rival classes or interests in all sections and corners of the industrial world. We shall have a recurrence of legislation which, it has been supposed, had been outgrown, not only as illegal, but as wholly useless for any good effect, and only powerful for evil. Contests of such a nature are productive only of harm. The only safety for all is to uphold, in their full vigor, the healthful restrictions of our constitution, which provide for the liberty of the citizen, and erect a safeguard against legislative encroachments thereon, whether exerted to-day in favor of what is termed the laboring-interests, or tomorrow in favor of the capitalists. Both classes are under its protection, and neither can interfere with the liberty of the citizen, without a violation of the fundamental law.

In my opinion the court should not strain after holding such species of legislation constitutional. It is so plain an effort to interfere with" what seems to me the most sacred rights of property and the individual liberty of contract that no special intendment in its favor should be indulged in. It will not, as seems to me plain, even achieve the purposes of its authors. I believe it vain to suppose that it can be other than of the most ephemeral nature at its best, or that it will have any real virtue in altering the general laws of trade, while, on the other hand, it may ruin or very greatly impair the value of the property of wholly innocent persons. If the compensation limited by the act is not sufficient to permit the average rate of profit upon the capital invested, it will result either in its evasion or else the work will not be done, and the capital employed will seek other channels where such average rate can be realized, or the property "will become of little or no value. If the compensation be sufficient, the same result aimed at would soon follow from the general laws of trade, from the law of supply and demand, and the general cost of labor and materials.

Every one having the same right to build an elevator or warehouse that these defendants have, and upon its completion to employ it in the same business, if the rate of profit is above the average, capital, if allowed absolute freedom and legal protection, will flow into the business until there is enough invested to do all or more than all the work offered, and then, by the competition of capital, the rate of compensation would come down to the average. Such, at least, would be the tendency; and it could only be averted by combination among the owners of the property, which could not be long sustained in the face of perfect freedom to all to invest in such undertakings. That they are expensive and require the outlay of a large amount of money to build and maintain them, and that the warehouses now existing may have an advantage in location, does not, as has been shown, make them a monopoly, but simply tends to make the inevitable result a trifle more slow in its approach than in other cases requiring a smaller outlay. If it be said that there is already a superabundance of elevators, more than can be or are used, and that some of them lie idle while others do the work, and they all share in the profit; if the profit exceed what the owners of the grain or those engaged in its transportation can afford to pay, the result will then be that the persons so engaged will cease from that kind of work, or else the owners .of the elevators will reduce their charges. This reduction of charges will most surely take place before the owners of the elevators would allow the business to pass out of existence, provided the compensation after such reduction would enable them to realize the average rate of profit for their capital; while, if it would not, it would be conclusive proof that the business of transportation of grain or other commodities where the boats were to be loaded or unloaded by elevators could no longer be conducted with profit to all parties, and some new way would have to be discovered and put in practice, for capital will not seek investment or employment where the average rate of profit cannot be commanded, and men will not continue to transpon grain or any other commodity at a loss, or upon such terms that they cannot earn a livelihood.

If this is the case in the transportation of grain by the canal, owing to the competition of railroads and. their ability to transport it cheaply and rapidly, then that fact must be faced. Such a business cannot be maintained for any length of time, by legislation, at the expense either of capital or of the transporter. Bach must earn the average profit in the same general line of business, or the business must, from economical reasons, cease.

The legislation under consideration is not only vicious in its-nature, communistic in its tendency, and, in my belief, wholly inefficient to permanently obtain the result aimed at, but, for the reasons already given, it is an illegal effort to interfere with the lawful privilege of the individual to seek and obtain such compensation as he can for the use of his own property, where he neither asks nor receives from the sovereign power any special right or immunity not given to, and possessed by, every other citizen, and where he has not devoted his property to any public use, within the meaning of the law.

The orders of the general and special terms of the supreme court should, therefore, be reversed, and the relators discharged.

Orders affirmed on opinion in People v. Budd.

Ruger, Ch. J., Andrews, Earl, Danforth and Finch, JJ., concur; Peckham, J., reads for reversal; Gray, J., concurs.  