
    The People, Resp’ts, v. J. Tallman Budd, App’lt.
    
      (Court of Appeals,
    
    
      Filed October 15, 1889.)
    
    1. Constitutional law — Laws 1888, chap. 581, constitutional.
    Chapter 581 of the Laws of 1888 fixing the maximum charge for elevating grain in places of more than 130,000 inhabitants, is valid and constitutional.
    (Peckham and Gray, JJ., dissenting.)
    2. Same.
    The power of the legislature to control and regulate elevator charges’ rests on the nature and extent of the business, the existence of a virtual monopoly, the benefit derived from the canal creating the business and making it possible, the interest to trade and commerce, the relation of the business to the prosperity and welfare of the state and the practice of legislation in analogous cases.
    Appeal from judgment of the general term of the superior court of Buffalo, affirming judgment of conviction under chap. 581, Laws 1888.
    No opinion was written below.
    
      Spencer Clinton, for appl’t; George T. Quinby, for resp’ts.
    See opinion of Peckham, J., postea p. 554. [Ed.
   Andrews, J.

The main question upon this record is, whether the legislation fixing the maximum charge for elevating grain, contained in the act, chapter 581 of the Laws of 1888, is valid and constitutional. The act, in its first section, fixes the maximum charge for receiving, weighing and discharging grain by means of floating and stationary elevators and warehouses in this state at five-eighths of one cent a bushel, and for. trimming and shoveling to the leg of the elevator in the process of handling grain by means of elevator, “ lake vessels or propellers, the ocean vessels or steamships, and canal boats,” shall, the section declares, only be required to pay the actual cost. The second section makes a violation of the act a misdemeanor, punishable by fine of not less than $250. The third second gives a civil remedy to a party injured by a violation of the act The fourth section ex-eludes from the operation of the act any village, town, or city having less than 130,000 population.

The defendant, the manager of a stationary elevator in the city -of Buffalo, on the 19th day of September, 1888, exacted from the .Lehigh Yalley Transportation Company for elevating, raising and -discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the ■elevator, the carrier was charged and compelled to pay four dollars for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed pursuant to an arrangement made since the passage of the act of 1888, by a body of men known as the shovelers' union, who pay the elevator one dollar and seventy-five cents a thousand bushels for the use of the steam shovel, a part of the machinery connected with the elevator, operated by steam, and who for their services and the expense of the steam-shovel charge the carrier for each thousand bushels of grain shoveled the sum of four dollars. The defendant was indicted for a violation of the act of 1888. The indictment contains a single count charging a violation of the first section in two particulars, viz.: In exacting more than the statute rate for elevating the cargo, and exacting more than the actual cost for shoveling the grain to the leg of the elevator. Before reaching the main question there is a subordinate question to be considered. The defendant on the trial raised the question of the constitutionality of the act of 1888, and also insisted that as to the alleged overcharge for shoveling, the facts did not show that the defendant had received anything for that service or that the cargo had been charged more than the actual cost, and excepted to the submission to the jury of that branch of the case. The trial judge overruled both points and submitted the case to the jury in both aspects, who found a general verdict of guilty, and thereupon the court imposed upon the defendant a fine of $250. It is now urged that assuming the constitutionality of the act of 1888, the judgment should be reversed for the reason that no overcharge by the defendant for shoveling was proved, and also that the sum paid for shoveling was paid to the shovelers’ union, the defendant. only receiving thereout, from the union, the rent agreed for the use of the steam-shovel.

There are two answers to this proposition. .The words “ actual cost,” used in the statute, were manifestly intended to exclude any charge by the elevator beyond the sum specified for the use of its machinery in shoveling, and the ordinary expenses of operating it, and to confine the charge to the actual cost of the outside labor required for trimming and bringing the grain to the leg of the elevator. The purpose of the act could be easily evaded and defeated if the elevator owners were permitted to separate the services and charge for the use of the steam-shovel any sum which might be agreed upon between themselves and the Shovelers’ Union, and thereby, Under color of charging for the use of the steam shovel, exact of the carrier a sum for elevating beyond the rate fixed í)y the act. There is a second answer to the proposition. It. was undisputed that the defendant exacted a greater charge for elevating than the sum allowed by the act. This was proven by testimony on the part both of the prosecution and the defendant. The verdict of guilty was followed by the infliction of the lowest penalty for a single offense. The verdict and sentence were justified without considering whether an offense was made out under the second allegation in the indictment. BTo question as to the form of the indictment was made. The joinder of several distinct misdemeanors in the same indictment is not a cause for the reversal of a judgment where there is a general verdict, and the sentence is single and is appropriate to either of the counts upon which the conviction was had. Polinsky v. People, 73 N. Y., 65. Even if the alleged overcharge for shoveling was not made out, the verdict and sentence are supported by the findings of the jury on the other branch of the case, and the refusal of the judge to withdraw from the jury the consideration of the question whether there was an overcharge for shoveling could not prejudice the defendant. Passing, therefore, this point, we come to the main question, and that is whether legislative power, under the state constitution, exists in the legislature to prescribe a maximum charge for elevating grain by stationary elevators, owned by individuals or corporations, who have appropriated their property to this use and are engaged in this business.

The ascertainment of the exact boundaries of legislative power under the rigid constitutional systems of the American States, is, in many cases, attended with great perplexity and difficulty. The people have set into the framework of the constitution a variety of restrictions upon legislative power, and chief among them is. that which ordains that no person shall be deprived of life, liberty or property without due process of law. There is but little difficulty in determining the validity of a statute under this constitutional principle in cases where the statute assumes to divest the owner of property of his title and possession, or to actually deprive him of his personal liberty. The state may lawfully take the property or life of the citizen without infringement of the constitutional guaranty. The cases where the right of property is set. aside by positive laws are various. Distress, executions, forfeitures, taxes, are of this description, “ wherein,” said Lord Camden, in Entick v. Carrington, 19 How. St. Tr., 1067, “ every man, by common consent, gives up that right for the sake of justice and the common good.” The state may directly take private property for public use on the condition of making compensation, and the cases where it may be taken in satisfaction of public and private obligations, or for the support of government, or as a return for governmental protection, are determined by general rules well understood and easily applied. The difficulty in the application of the constitutional principle arises in the main in respect to that class of legislation, not infrequent, which, while it does not in a strict sense deprive an individual of his property or liberty, does, nevertheless, in many cases, by the imposition of burdens and restrictions upon the use and enjoyment of property, and by restraints put upon personal conduct, seriously impair the value of property and abridge freedom of action. The validity of legislation of this kind, to some extent, and within certain limits, is -questioned by none. But such legislation may overpass the boundaries of legislative power and violate the constitutional .guaranty, for it.is now an established principle that this guaranty protects property and liberty, not merely from confiscation or destruction by legislative edicts, but also from any essential impairment or abridgement not justified by the principles of free government.

This court has recently, in several notable instances, vindicated the rights of individuals against unjust and arbitrary legislation, restraining freedom of action, or imposing conditions upon private business not warranted by the constitution. In re Jacobs, 98 N. Y., 98; People v. Marx, 99 id., 377; People v. Gillson, 109 id., 399; 16 N. Y. State Rep., 185. But the very existence of government presupposes the right of the sovereign power to prescribe regulations demanded by the general welfare for the common protection of all. This principle inheres in the very nature of the social compact. The protection of private property is one of the main purposes of government; but no one holds his property by such an absolute tenure as to be freed from the power of the legislature to impose restraints and burdens required by the public good, or proper and necessary to secure the equal rights of all. This power of government, the power, as expressed by Taney, Ch. J., 5 How.,U. S., 583, inherent in every soveignty, the power to govern men and things,” is not, however, an uncontrollable or despotic authority, subject to no limitation, exercisable with or without reason in the discretion or at the whim or caprice of the legislative body. But within its legitimate domain the power is original, absolute and indefeasible. It vested in the legislative department of the government at its creation, without affirmative grant or definition, as an essential political power and attribute of government, and personal rights and rights of property are sub-. ordinate to this supreme power, acting within its appropriate sphere. ■ It may be exercised so as to impair the value of prop-1 erty, or limit or restrict the uses of property; yet in this there is no infringement of the constitutional guaranty, because that guar'anty is not to be construed as liberating persons or property from; the just control of the laws. It is designed for the protection of; personal and private rights against encroachments by. the legislative body not sanctioned by the principles of civil liberty as held and understood when the constitution was adopted. [The boundary of legislative power in the enactment of laws in the’assumed exercise of this power of sovereignty, which injuriously^ affects, persons or property, is indistinct, and no rule of definition can be formulated under which, in all cases, it can be readily determined whether a statute does or does not transgress the fundamental law.'

The power of the British parliament is not the test of legislative; power under the written constitution of the American states. But the great landmarks of civil liberty embodied in our state constitutions were established by our English ancestors, and upon questions such us the one now before us we may studyfwith profit the principles and practice of the law of England. When a statute is challenged as overstepping the boundaries of legislative power, the object sought to be attained by the legislature, the nature and functions of government, the principles of the common law, the practice of legislation and legal adjudications are pertinent and important considerations and elements in the determination of the controversy. The act now in question regulates the price of elevating grain, and the regulation affects the compensation which may be lawfully demanded for labor and personal services, as well as for the use of property. It fixes a maximum charge for labor and the use of property when combined, as they of necessity are, in the business of elevating grain. The operation of the statute is by its terms' limited to the business carried on in cities and towns having a population of not less than 130,000, practically to the cities of Buffalo, Hew York and Brooklyn. The circumstances, also, substantially restrict the application of the act to grain brought to Buffalo from the upper lakes and water, and there, by means of elevators, transhipped into canal boats and transported through the Erie canal and the Hudson river to the harbor of Hew York, and there discharged by elevators into warehouses or ocean vessels. The business of transporting grain by the lakes, and thence by the Erie canal to Hew York, is one of great magnitude. The case shows that 120,000,000 of bushels of grain annually come to Buffalo from the west The business of elevating grain at that point is mainly connected with lake and canal transportation.

It is shown by official records that the receipts of grain at Hew York in the year 1887, by way of the Erie canal and Hudson river, during the season of canal navigation, exceeded 46,000,000 bushels, an amount very largely in excess of the amount received during the same period by rail and by river and coastwise vessels. The elevation of this grain from lake vessels to canal boats takes place at Buffalo, where the case shows there are thirty or forty elevators, stationary and floating. How many of these elevators are actually employed in the business does not appear. 'The record is silent as to many facts which might tend to explain the relation of this business as actually conducted to the public interests. It is asserted that a combination exists, and has for several years existed, between the elevator owners, to maintain excessive charges by fixing a uniform tariff and pooling the earnings, and dividing them ratably among all the elevator owners, although but a part of the elevators are actually operated. See report of the committee on foreign commerce of the Chamber of Commerce of Hew York, made in .April, 1885. There is no evidence in the record as to the location in the port of Buffalo suitable and available for stationary elevators. It is evident that they must be placed where they can be reached by both lake vessels and canal boats, and it may reasonably be assumed that but a limited area (not devoted to other purposes of commerce) is available for the erection of stationary elevators. The case of Munn v. Illinois, 94 U. S., 113, is a direct authority upon the question now before us. That case was brought to the United States supreme court on a writ of error, to review a judgment of the supreme court of the state of Illinois, which affirmed the constitutionality of a statute of that state fixing a maximum charge for the elevation and storage of grain in warehouses in that state.. The act was challenged as a violation of the constitutional guaranty in the constitution of Illinois, protecting life, liberty and property, in substantially the same language as in the constitution of this state. The supreme court of the United States affirmed the judgment of the state court on the ground that the legislation in question was a lawful exercise of legislative power, and did not infringe the clause in the fourteenth amendment of the constitution of the United States, " nor shall any state deprive any person of life, liberty or property without due process of law.”

The legislation in question in Munn v. Illinois was similar to, and is not distinguishable in principle from, the act, chap. 581 of the Laws of 1888, now under review. The question in that case was raised by an individual owning an elevator and warehouse in Chicago, which had been erected for, and in connection with which he had carried on, the business of elevating and storing grains for many years prior to the passage of the act in question, and prior also to the adoption of the amendment of the constitution of Illinois in 1870, declaring all elevators and warehouses where grain or other property is stored for a compensation to be public warehouses. The case of Munn v. Illinois has been referred to by the court in several cases. People ex rel. v. Boston & Albany R. R. Co., 70 N. Y., 569; Beriholf v. O'Reilly, 74 id., 509; Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 id., 132; 19 N. Y. Slate Rep., 574; People v. King, 110 N. Y., 418; 18 N. Y. State Rep., 353. In People ex rel., etc., v. Boston & Albany R. R. Co., which related to the power of the legislature to compel the defendant to build a bridge at a point where the railroad of the defendant crossed a highway, the court, by Earl, J., said : “ The whole subject of the legislative power over

railroads, and even private persons, holding and using their property for public purposes, has been so fully discussed recently in the supreme court of the United States, in the Granger cases and in the Chicago Elevator case, as to make further discussion unnecessary here. Such legislation violates no contract, takes a-way no property and interferes with no vested right.” In Bertholf v. O'Reilly, Munn v. Illinois was cited as illustrating the scope of the police power in legislation. In Buffalo East Side Railroad Company v. Buffalo Street Railroad Company, which involved the question of the right of the legislature to regulate and reduce the fare on street railways in the city of Buffalo, which it was claimed affected a contract entered into between two of the companies prior to the passage of the act, this court affirmed the validity of the law, and Ruger, Ch. J., in pronouncing the opinion of the court, quoted the language of Waitc, Ch. J., in the Munn case, and also the language of Bradley, J., in the Sinking Fund Cases, 99 U. S., 747, declaring the principle decided in the Munn case, and these quotations were quite irrelevant unless the doctrine stated therein was intended to be appoved.

In the People v. King, the doctrine of the llunn case was applied by this court to uphold the validity of a statute which prohibited the exclusion of any citizen from theatres or other places of amusement, by reason of race, color or previous condition of servitude, anti a conviction in that case was sustained, where the defendant, the proprietor of a skating-rink erected on his own property, opened it to the public, but excluded therefrom, on the occasion of a public entertainment, on the ground of race and color, a colored person who sought admission. The court is not concluded by these cases, or any of them, from re-examining the principle on which the decision in Munn v. Illinois proceeded, but we cannot overrule and disregard that case without, as I think, subverting the principle of our decision in the King case, and certainly not without disregarding many deliberate expressions of this court in approval of the principle of that decision. It is an interesting question as to what consideration should be given by a state court to a decision of the supreme court of the United States upon a question of constitutional law, rendered in the exercise of its jurisdiction, where the point in judgment relates to the validity of a state statute, which is challenged on the ground that it deprives a party of life, liberty and property without due process of law, and the decision affirms theuonstitutionality of the statute. The jurisdiction of the supreme court of the United States to review the decision of a state court, sustaining a state statute which is alleged to be a violation of this constitutional principle, originated with the -adoption of the fourteenth amendment of the constitution of the United States, which for the first time introduced into the federal constitution the prohibition, “ nor shall any state deprive any person of life, liberty or property, without due process of law,” This was a new limitation in the federal constitution on the state governments. Prior to the adoption of the fourteenth amendment, personal rights and rights of property were, as a rule, exclusively matters of state cognizance, and the state courts were the ultimate tribunals for the determination of questions arising under the constitutional guaranty of life, liberty and property, which was to be found only in the state constitutions. Their decisions were not subject to review in the courts of the United States. Slaughter-house Cases, 16 Wall., 36.

There were exceptions growing out of art. 1, § 10 of the federal constitution, that “no state should pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,” not material here. Since the fourteenth amendment the question whether a state statute infringes the constitutional guaranty protecting life, liberty and property, where it arises in a state court, involves the consideration of both the federal and state constitutions, although the ground of construction and decision would be identical under either instrument. But whether the decision of the state court presents a federal question, reviewable on appeal to the supreme court of the United States, depends on the nature of the decision of the state court; that is to say, whether it affirmed the validity of the statute or held it to be unconstitutional and void. If the state court decides that the statute does violate the constitutional guaranty, its decision is now, as before •the fourteenth amendment, final and conclusive, and no appeal can be taken to the federal court, as in that case no right, under the constitution and laws of the United States, has been denied. If, on the other hand, the state court sustains the statute and denies the right asserted, the federal jurisdiction attaches, and an appeal may be taken to the United States supreme court. It cannot be maintained, we think, that a decision of the federal court sustaining a state statute is res adjudicata and binding upon a state court, when the same question subsequently arises there under a similar statute. It would still be the duty of the state court to examine the question and decide it according to its interpretation of the constitutional guaranty. But the respect due to the decision of that high tribunal, the fact that to it has been committed, by the consent of the states, the ultimate vindication of liberty and property against arbitrary and unconstitutional legislation, an„d the fitness of things, emphasize and enforce, in the particular case, the settled rule that only when required by the most cogent reasons, nor, indeed, unless compelled by unanswerable grounds, will a court declare a statute to be unconstitutional;

“On more than one occasion,” said Chief Justice Marshall, in the Dartmouth College case, 4 Wheat., 625, “this court has expressed the cautious circumspection with which it approaches the consideration of such questions, and has declared that in no doubtful case would it pronounce a legislative act to be contrary to the constitution. The power of the legislature to regulate the charge for elevating grain, where the business is carried on by individuals upon their own premises, depends upon the question whether the regulation falls within the scope of what is called the police power, which is but another name for that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the state necessary for the public welfare. The existence of this power is universally recognized. All property, all business, every private interest may be affected by it and be-brought within its influence. Under this power the legislature regulates the uses of property, prescribes rules of personal conduct, and in numberless ways, through its pervading and ever-present authority, supervises and controls the affairs of men in their relations to each other and to the community at large, to secure the mutual and equal rights of all, and promote the interests of society. It has limitations; it cannot be arbitrarily exercised so as to deprive the citizen of his liberty and property. But a statute does not work such a deprivation in the constitutional sense simply because it imposes burdens or abridges freedom of action, or regulates occupations, or subjects individuals or property to restraints in matters indifferent, except as they affect public interests or the rights of others. Legislation under the police power infringes the constitutional guaranty only when it is extended to subjects not within its scope and purview, as that power was defined and understood when the constitution was adopted. The generality of the terms employed by jurists and publicists in defining this power, while they show its breadth and the universality of its presence, nevertheless leave its boundaries and limitations indefinite, and impose upon the court the necessity and duty, as each case is presented, to determine whether the particular statute falls within or outside of its appropriate limits.

“ It is much easier,” said Chief Justice Shaw, in Com. v. Alger, 7 Cush., 53, “to perceive and realize the existence of this power, than to mark its boundaries, or to prescribe limits to its exercise.” In determining whether the legislature can lawfully regulate and fix the charge for elevating grain by private elevators, it must be conceded that the uses to which a man may devote his property, the price which he may charge for such use, how much he shall demand or receive for his labor, and the methods of conducting his business are, as a general rule, not the subject of legislative regulation. These are a part of our liberty of which, under the constitutional guaranty, we cannot be deprived. We have no hesitation in declaring that unless there are special conditions and circumstances which bring the business of elevating grain within principles which, by the common laws and the practice of free governments, justify legislative control and regulation in the particular case, the statute of 1888 cannot be sustained. That no general power resides in the legislature to regulate private business, prescribe the conditions under which it shall be conducted, fix the price of commodities of services, or interfere with freedom of contract, we cannot doubt. The merchant and manufacturer, the artisan and laborer, under our system of government, are left to pursue and provide for their own interests in their own way, untrammeled by burdensome and restrictive regulations which, however common in rude and irregular times, are inconsistent with constitutional liberty. The justification of the statute of Illinois regulating the charge for elevating and storing grain in the elevators of that state was placed in the Munn case upon that, principle of the common law stated by Lord Hale in his treatise De Portibus Maris, 1 Harg. Law. Tracts, 78, that when private property is “affected by a public interest it ceases to be juris privati only.”

The principle of the decision is stated with great perspicuity by Bradley, J., in his opinion in the Sinking Fund Cases, supra. He says: “ The inquiry there was as to the extent of the police power where the public interest is affected; and we held that where an employment becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen; in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute -can be exacted from .the community, it is subject to regulation by the legislative power.”

The elevators in Chicago had no legal monoply in the business of elevating grain. The business was open to all comers, but the location of the elevators, their connection with the railroads, on which most of the grain from the grain-producing states and territories of the west and northwest was brought to Chicago, the necessity of using them, in the transfer, storing and transhipment of grain, created, as was held by the court, a virtual and practical monopoly which affected the business of the property with a public interest and subjected them to regulation by law. The application of the language of Lord Hale, and of the principle that private property may, by its uses, cease to\>e juris privati strictly, and become affected by a public interest, to the business of elevating grain in Chicago, was combatted and denied by Field, J.? ih his very able and forcible dissenting opinion. “It is,” he declared, “ only where some privilege in the bestowment of the government is enjoined in connection with (private) property, that it is affected by a public interest in any proper sense of the terms. It is the public privilege connected with the use of the property which creates the public interest in it.” There can be no doubt that where the government confers a special privilege upon a citizen not of common right, it may annex such conditions upon its enjoyment as it sees fit. Nor can there be any question that where an individual has a legal monopoly to use Ins property for a public purpose, and the public have an interest in the use, he is subject to an obligation cast upon him by the common law to demand only a reasonable compensation for the use.

This is stated with great clearnesss by Lord Ellenborough in Allnut v. Inglis, 12 East, 538. “There is,” he said, “no doubt that the general principle is favored, both inlaw 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 behave 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.” But the question is whether the power of the legislature to regulate charges for the use of property and the rendition of services connected with it depends in every case upon the circumstance that the owner of the property has a legal monopoly or privilege to use the property for the particular purpose, or has some special protection from the government, or some peculiar benefit in the prosecution of his business. Lord Hale' in the treatises De Porlibus Maris and De Jure Maris, so largely quoted from in the opinions in the Munn case, used the language that when private property is “affected with a public interest, it ceases to be juris privati only,” in assigning the reason why ferries .and public wharves should be under public regulation and only reasonable tolls charged. The right to establish a ferry was a franchise, and no man could set up a ferry, although he owned the soil and landing-places on both sides of the stream, without a charter from the king or a prescription time out of mind. The franchise to establish ferries was a royal prerogative, and the grant of the king was necessary to authorize a subject to establish a public ferry, even on his own premises. When we recur to the origin and purpose of this prerogative, it will be seen that it was vested in the king as a means by which a business, in which the whole community were interested, could be regulated. In other words, it was simply one mode of exercising a prerogative of government, that is to say, through the sovereign instead of through Parliament, in a matter of public concern. This and similar prerogatives were vested in the king for public purposes, and not for his private advantage or emolument.

Lord Kenyon, in Rorke v. Dayrell, 4 Term R., 410, said: “The prerogatives of the crown are not given for the personal advantage of the king; but they are allowed to exist because they are beneficial to the subject,” and it is said in Chitty on Prerogatives, 4: “ The splendor, rights and power of the crown were attached to it for the benefit of the people, and not for the private gratification of the subject.” And Lord Hale, in one of the passages referred to, in stating" the reason why a man may not set up a ferry without a charter from the king, says, “ Because it doth in consequence tend to a common charge and is become a thing of public interest and use, and every man for his passage pays a toll which is a common charge, and every ferry ought to be under a public regulation.” The right to take tolls for wharfage in a public port was also a franchise, and tolls, as Lord Hale says, could not be taken without lawful title by charter or prescription. De Portibus Maris, 77. But the king, if he maintained a public wharf, was under the same obligation as a subject to exact only reasonable tolls; nor could the king authorize unreasonable tolls to be taken by a subject. The language of Lord Hale is explicit upon both these points: “ If the king or subject have a public wharf into which all persons that come to that port must come to unload 'their goods, as for the purpose, because they are the wharves only licensed by the queen, according to the statute of 1 Elizabeth, chap. 2, or because there is no other wharf in that port, as it may fall-out when a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, passage, etc. Neither can they be enhanced to an immoderate degree, but the duties must be reasonable and moderate, though settled by the kitig’s license or charter.” The contention that the right to regulate the charges of ferrymen or wharfingers was founded on the fact that tolls could not be taken without the king’s license, does not seem to us to be sound. It rested on the broader basis of public interest, and the license was the method by which persons exercising these functions were subjected to governmental supervision. The king, in whom the franchise of wharfage was vested as a royal prerogative, was himself, as has been shown, subjept to the same rule as the subject, and could only exact reasonable wharfage, nor could he by express license authorize the taking of more.

The language of Lord Hale, that private property may be affected by a public interest, cannot, justly, we think, be restricted as meaning only property clothed with a public character by special grant or charter of the sovereign. The control which by common law and by statute is exercised over common carriers, is conclusive upon the point that the right of the legislature to regulate the charges for services in connection with the use of property does not in every case depend upon the question of legal monopoly. From the earliest period of the common law it has been líela that common carriers were bound to carry for a reasonable compensation. They were not at liberty to charge whatever sum they pleased, and even where the price of carriage was fixed by the contract or convention of the parties, the contract was not enforceable beyond the point of reasonable compensation. From time to time statutes have been enacted in England and in this country, fixing the sum which should be charged by carriers for the transportation of passengers and property, and the validity of such legislation has not been questioned. But the business of common carriers until recent times was conducted almost exclusively by individuals for private emolument, and was open to everyone who chose to engage in it. The state conferred no franchise and extended to common carriers no benefit or protection, except that general protection which the law affords to all persons and property within its jurisdiction. The extraordinary obligations imposed upon carriers and the subjection of the business to public regulation were based on the character of the business, or, in the language of Sir William Jones, upon the consideration “ that the calling is a public employment.” Jones on Bailments, Appendix. It is only a public employment in the sense of the language of Lord Hale, that it was “ affected with a public interest,” and the imposition of the character of a public business upon the business of a common carrier was made because public policy was deemed to require that it should be under public regulation.

The principle of the common law that common carriers must serve the public for a reasonable compensation became a part of the law of this state, and from the adoption of the constitution has been part of our municipal law. It is competent for the legislature to change the rule of reasonable compensation, as the matter was left by the common law, and prescribe a fixed and definite compensation for the services of common carriers. This principle was declared in the Munn case, which was cited with approval on this point in Sawyer v. Davis, 136 Mass., 239. It accords with the language of Chief Justice Shaw, in Com. v. Alger, supra: “ Whenever there is a general right on the part of the public, and a general duty of the laud-owner, or any other person to respect such right, we think it is competent for the legislature, by a specific enactment, to prescribe a precise, practical rule for declaring, establishing and securing such right and enforcing respect for it.” The practice of the legislature in this and other states, to prescribe a maximum rate for the transportation of persons or property on railroads, is justified upon this principle. Where the right of the legislature to regulate the fares or charges on railroads is reserved by the charter of incorporation, or the charter was granted subject to the general right of alteration or repeal by the legislature, the power of the legislature in such cases to prescribe the rate of compensation is a part of the contract, and the exercise of the power does not depend upon any general legislative authority to regulate the charges of common carriers. But the cases are uniform that where there is no reservation in the charter the legislature may, nevertheless, interfere and prescribe, or limit the charges of railroad corporations. The Granger Casest supra; Dow v. Beidelman, 125 U. S., 680; Earl, J., in People ex rel. v. Boston & Albany R. R. Co., supra; Ruger, Ch. J., in Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., supra.

The power of regulation in these cases does not turn upon the fact that the entities affected by the legislation are corporations deriving their existence from the state, but upon the fact that the corporations are common carriers, and, therefore, subject to-legislative control. The state, in constituting a corporation, may prescribe or limit its powers and reserve such control as it sees fit, and the body accepting the charter takes it subject to such limitations and reservations, and is bound by them. The considerations upon which a corporation holds its franchise are the duties and obligations imposed by the act of incorporation But when a ' corporation is created it has the same rights and the same duties, within the scope marked out for its action, that a natural person has. Its property is secured to it by the same constitutional guaranties, and in the management of its property and business is. subject to regulation by the legislature to the same extent only as natural persons, except as the power may be extended by its. charter. The mere fact of a corporate character does not extend the power of legislative regulation.

Eor illustration, it could not justly be contended that the act of 1888 would be a valid exercise of legislative power as to corporations organized for the purpose of elevating grain, although "invalid as to private persons conducting the same business. The conceded power of legislation over common carriers is adverse to the claim that the police power does not in any case include the power to fix the price of the use of private property, and of services connected with such use, unless there is a legal monopoly, or special governmental privileges or protection has been bestowed. It is said that the control which the legislature is permitted to exercise over the business of common carriers is a survival of that class of legislation which in former times extended to the details of personal conduct, and assumed to regulate the private affairs and business of men in the minutest particulars. This is true. But it has survived because it was entitled to survive.

By reason of the changed conditions of society, and a truer appreciation of the proper functions of government, many things have fallen out of the range of the police power as formerly recognized, the regulation of which, by legislation, would now be regarded as invading personal liberty. But society could not safely surrender the power to regulate by law the business of common carriers. Its value has been infinitely increased by the conditions of modern commerce, under which the carrying trade of the country is, to a great extent, absorbed by corporations, and as a check upon the greed of these consolidated interests, the legislative power of regulation is demanded by the most imperative public interests. The same principle upon which the control of common carriers rests, has enabled the state to regulate in the public interest the charges of telephone and telegraph companies, and to make the telephone and telegraph, those important agencies of commerce, subservient to the wants and necessities of society. These regulations in no way interfere with a rational liberty— liberty regulated by law. There are elements of publicity in the business of elevating grain which peculiarly affect it with a public interest. They are found in the nature and extent of the business, its relation to the commerce of the state and country, and the practical monopoly enjoyed by those engaged in it. The extent of the business is shown by the facts to which we have referred A large proportion of the surplus cereals of the country passes through the elevators at Buffalo, and finds its way through the Erie canal and Hudson river to the seaboard at Hew York, from whence they are distributed to the markets of the world. The business of elevating grain is an incident to the business of transportation. The elevators are indispensable instrumentalities in the business of the common carrier. It is scarcely too much to say that, in a broad sense, the elevators perform the work of carriers. They are located upon or adjacent to the waters of the state, and transfer from the lake vessel to the canal boats, or from the canal boats to the ocean vessels, the cargo of grain, and thereby perform an essential service in transportation. It is by means of the elevators that transportation of grain by water from the upper lakes to the seaboard is rendered possible. It needs no argument to show that the business of elevating grain has a vital relation to commerce in one of its most important aspects. Every excessive charge made in the course of the transportation of grain is a tax on commerce, and the public have a deep interest that no exorbitant charges shall be exacted at any point upon the business of transportation.

The state of Hew York in the construction of the Erie canal, exhibited its profound appreciation of the public interest involved in the encouragement of commerce. The legislature of the state, in entering upon the work of constructing a waterway between Lake Erie and the Atlantic ocean, sets forth in the preamble of the originating act of 1817 its reasons for that great undertaking. “ It will,’’ the preamble says, “ promote agriculture, manufactures and commerce, mitigate the calamities of war and enhance the blessings of peace, consolidate the Union and advance the prosperity and elevate the character of the United States.” In the •construction and enlargement of the canal the state has expended vast sums of money, raised by taxation, and finally, to still further promote the interests of commerce, it has made the canal a free highway and maintains it by a direct tax upon the people of the state. The wise forecast and statesmanship of the projectqrs •of this work have been amply demonstrated by experience. It has largely contributed to the power and influence of the state, promoted the prosperity of the people, and to it, more perhaps than to any other single cause, is it owing, that the city of Hew York has become the commercial centre of the union. Whatever impairs the usefulness of the canal as a highway of commerce involves the public interest. The people of Hew York are greatly interested to prevent any undue exactions in the business, of transportation which shall enhance the cost of the necessaries of life, or'force the trade in grain into channels outside of our state. In Hooker v. Vandewater, 4 Den., 349, the court was called upon to. consider the validity of an agreement between certain transportation lines on the canal to keep up the price of freights. The court held the agreement to be illegal, and Jewett, J., in pronouncing the judgment of the court, said, “that the raising of the price of freights for the transportation of merchandise or passengers, upon our canals is a matter of public concern and in which the public have a deep interest, does not admit of doubt. It is a familiar maxim that competition is the life of trade. It follows that whatever destoys, or even relaxes competition in trade, is injurious, if not fatal to it.”

The same question came up a second time in Stanton v. Allen, 5 Den., 434, and was decided the same way. In the course of its. opinion the court said: “As these canals are the property of the. state, constructed at great expense as facilities to trade and commerce, and to foster and encourage agriculture, and are, at the same time, a magnificent source of revenue, whatever concerns their employment and usefulness deeply involves the interest of the whole state.” The fostering and protection of commerce was, even in ancient times, a favorite object of English law, Chitty on Prerogatives, 162, and this author states that the “ superintendence and care of commerce, on the success of which so materially depends the wealth and prosperity of the nation, are in various cases allotted to the king by the constitution,” and many governmental powers vested in the sovereign in England have, since our revolution, devolved on the legislatures of the states. The statutes of England, in earlier times, were full of oppressive commercial regulations, now, happily, to a great extent, abrogated; but that the interests of commerce are matters of public concern, all states and governments have fully recognized. The third element of publicity which tends to distinguish the business of elevating grain from general commercial pursuits, is the practical monopoly which is, or may be, connected with its prosecution. In the city of Buffalo the elevators are located at the junction of the canal with Lake Erie. The owners of grain are compelled to use them in transferring cargoes. The area upon which it is practicable to. erect them is limited. The structures are expensive, and the circumstances afford great facility for combination among the owners of elevators to fix and maintain an exorbitant tariff of charges, and to bring into the combination any new elevator which may be erected, and employ it or leave it unemployed, but in either case permit it to share in the aggregate earnings.

It is evident that if such a combination in fact exists, the principle of free competition in trade is excluded. The precise object of the combination would be to prevent competition. The result of such a combination would necessarily be to subject the lake vessels and canal boats to any exaction which the elevator owners might see fit to impose for the service of the elevator, and the elevator owners would be able to levy a tribute on the community, the extent of which would, be limited only by their discretion. It is upon these various circumstances that the court is called upon to determine whether the legislature may interfere and regulate the charges of elevators. It is purely a question of legislative power. If the power to legislate exists, the court has nothing to do with the policy or wisdom of the interference in the particular case, or with the question of the adequacy or inadequacy of the compensation authorized. “ This court,” said Chase, Ch. J., in the License Tax case, 5 Wall., 469, “can know nothing of public policy, except from the constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative act. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must be addressed to the legislature. Questions of policy there are concluded here.” Can it be said, in view of the exceptional circumstances, that the business of elevating grain is not “affected with a public interest,” within the language of Lord Hale, of that the case does not fall within the principle which permits the legislature to regulate the business of common carriers, ferrymen, innkeepers, hackmen and the interest on the use of money ? It seems to us that speculative, if not fanciful, reasons have been assigned to account for the right of legislative regulation in these and other cases. It is said that the right to regulate the charges of hackmen springs from the fact that they are assigned stands in the public streets; that the legislature may regulate the toll on ferries, because the right to establish a ferry is a franchise, and, therefore, the business is subject to regulation ; that the right to regulate wharfage rested upon the permission of the sovereign to extend wharves into the bed of navigable streams, the title to which was in the sovereign; that the right to regulate the interest on the use of money sprung from the fact that taking interest was originally illegal at common law, and that where the right was granted by statute, it was taken subject to regulation by law.

The plain reason, we think, why the charges of hackmen and ferrymen were made subject to public regulation is, that they were common carriers. The reason assigned for the right to regulate wharfage in England overlooks the fact that the title to the bed of navigable streams was frequently vested in a subject, and was his private property, subject to certain public rights, as the right of navigation, and no distinction as to the power of public regulation is suggested in the ancient books between wharves built upon the bed of navigable waters, the title to which was in the sovereign, and wharves erected upon navigable streams, the bed which belonged to a subject. The obligation of the owner of the only wharf in a newly erected port to charge only reasonable wharf-age is placed by Lord Hale on the ground of a virtual as distinguished from a legal monopoly. The reason assigned for the right to regulate interest takes no account of the fact that the prohibition by the ancient common law to take interest at all was a regulation, and this manifestly did not rest upon any benefit conferred -on the lenders of money. It was a regulation springing from a supposed - public interest, and was peculiarly oppressive on a certain class. A law prohibiting the taking of interest on the use of money would now be deemed a violation of a right of property. But the material point is, that the prohibition, as well as the regulation of interest, was based upon public policy, and the present conceded right of regulation does not have its foundation in any grant or privilege conferred by the sovereign. The attempts made to place the right of public regulation in these cases upon the ground of special privilege conferred by the public on those affected, cannot, we think, be supported. The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation. We rest the power of the legislature to control and regulate elevator charges on the nature and extent of the business, the existence of a virtual monopoly, the benefit derived from the canal, creating the business and making it possible, the interest to trade and commerce, the relation of the business to the prosperity and welfare of the state, and the practice of legislation in analogous cases. These circumstances collectively create an exceptional case and justify legislative regulation. The case of Munn v. Illinois has been frequently cited with approval by courts in other states. Nash v. Page, 80 Ky., 539; Hockett v. State, 105 Ind., 250; Chesapeake & Potomac Telephone Co. v. Baltimore & Ohio Tel. Co., 66 Md., 399; Davis v. State, 68 Ala., 58.

In Nash v. Page, it was held, upon the doctrine of the Munn case, that warehousemen for the public sale and purchase of tobacco in Louisville exercised a public business and assumed obligations to serve the entire public, and could not exclude persons from buying or selling tobacco in their warehouses who were not members of the board of trade.. In Hockett v. State, it was held that that relations which telephone companies have assumed towards the public imposed public obligations, and that all the instruments and appliances used by telephone companies in the prosecution of the business were in legal contemplation devoted to public use. In Chesapeake, etc., Tel. Co. v. B. & O. Tel. Co., legislation prohibiting discrimination in the business of telegraphing was upheld on the doctrine of the Munn case. The criticism to which the Munn case has been subjected has proceeded main on a limited and strict construction and definition of the poLod power. The ordinary subjects upon which it operates are well understood. It is most frequently exerted in the maintenance of public order, the protection of the public health and public morals, and in regulating mutual lights of property, and the use of property, so as to prevent uses by one of his property to the injury of the property of another. These are instances of its exercise, but they do not bound the share of its operation. In the King case, 110 N. Y., 418; 18 N. Y. State Rep., 353, it was given a much broader scope, and was held to be efficient to prevent discrimination on the ground of race and color in places opened for public entertainment. In that case the owner of the skating rink derived no special privilege or protection from the state. The public held no right in any legal sense to resort to his premises. His permission, except for the public interest involved, was revocable -as to the whole community or any individual citizen. But. it was held that so long as he devoted Ms place to purposes of public entertainment, he subjected it to public regulations.

There is'little reason, under our system of government, for placing a close and narrow interpretation on the police power, or in restricting its scope so as to hamper the legislative power in dealing with the varying necessities of society, and the new circumstances as they arise, calling for legislative intervention in the public interest. Life, liberty and property have a substantial protection against serious invasion by the legislature in the traditions of the English-speaking race, and a pervading public sentiment which is quick to resent any substantial encroachment upon personal freedom or the rights of property. In no country is the force of public opinion so direct and imperative as in this. The legislature may transgress the principles of the constitution. It has done so in the ¡oast, and it may be expected, that it will sometimes do so in the future. But unconstitutional enactments have generally been the result of haste or inadvertence, or of transient and unusual conditions in times of public excitement, which have been felt and responded to in the halls of legislation. The framers of the government wisely interposed the judicial power, and invested it with the prerogative of bringing every legislative act to the test of the constitution. But no serious invasion of constitutional guaranties by the legislature can for a long time withstand the searching influence of public opinion, which sooner or later is sure to come to the side of law and order and justice, however much for a time it may have been swayed by passion or prejudice, or whatever aberration may have marked its course. So, also, in that wide range of legislative powers over persons and property, which lie outside of the prohibitions of the constitution, and which, inhere of necessity in the very idea of government, by which persons and property may be affected without trangressing constitusional guaranties, there is a restraining and corrective power in public opinion which is a safeguard of tremendous force against unwise and impolitic legislation, hampering individual enterprise, and checking the heathful stimulus of self-interest, which are the life blood of commercial progress. The police power may be used for illegitimate ends, although no court can say that the fundamental law has been violated. There is a remedy at the polls, and it is an efficient remedy if, at the bottom, the legislation under it is oppressive and unjust.

The remedy by taking away the power of the legislature to act at will, would indeed be radical and complete. But the moment the police power is destroyed or curbed by fixed and rigid rules, a danger is introduced into our system which would, we think, be far greater than results from an occasional departure by the legislature from correct principles of government. We here conclude our examination of the important question presented by this case. The division of opinion in this and other courts is evidence of the difficulty which surrounds it. But it is ever to "be remembered that a statute must stand so long as any reasonable doubt can be indulged in favor of its constitutionality. We are of opinion that the statute of 1888 is constitutional, as a whole, and that although it may comprehend cases which, standing alone, might not justify legislative interference, yet they must he governed by the general rule enacted by the legislature.

The judgment should be affirmed.

Gray, J.

(dissenting). — I am unable to assent to the views expressed in the opinion for the court, in this case. Judge Peck-ham has thoroughly examined and considered the question in People v. Walsh, a similar case, and I concur with him in that opinion. As his opinion exhaustively reviews the cases and the text-books, I shall attempt no extended, nor historical discussion; but will briefly state the grounds of my dissent.

This legislation is sought to be upheld as constitutional, upon the ground that it is within a proper exercise of tire sovereign power to prescribe regulations, when demanded by the general welfare for the common protection of all. It is said to fall within the scope of the police power of the state.. If this is true of this measure, then I fail to see where are the limits within which the exercise of that power can be confined. This act undertakes to regulate the prices which can be charged by an individual in the prosecution of his private business. Its provisions are attempted to be justified in this case, because, it is said, the business in question is a virtual monopoly; owes its profitable existence to the benefit conferred by the Erie canal; and the interests of trade and and commerce and the welfare of the state demand that its charges should be regulated by the sovereign power. This plea for the extension at the police power, to the extent named of interfering with the conduct of a legitimate private business enterprise, seems to me to find no support in reason, and it certainly tends to nullify that provision of the .constitution which is supposed to guarantee to each individual that he shall not be deprived of his life, or liberty, or property, without due process of law.

The learned judge, writing the opinion, concedes that the uses to which a man may devote his property, the price which he may charge for such use, how much he shall demand or receive for his labor and the methods of conducting his business are, as a general rule, not the subjects of legislative regulation. He well says that these are a part of our liberty, of which, under the constitutional guaranty, we cannot be deprived.” He believes however that he finds in this particular business of elevating grain ‘ “ special conditions and circumstances ” which justify legislative control. In my view the concession, which the learned judge is obliged to make with respect to our constitutional liberties, impairs the force and effect of his opinion ; unless he is able to show that the business in question is affected with a public use or interest within the strict and proper meaning of the term. This I do not see that he accomplishes. The circumstances amount to nothing more than that the transhipment of grain from and to barges, vessels and cars, is more expeditiously and advantageously done through the use of grain elevators than in any other way, and those persons who are interested in the shipment oi grain must, for the better promotion of their private interests, have resort to them. It may be admitted that the use of the grain elevator is necessary to the grain shipper for the profitable or successful transaction of his business. But do such facts invest the grain elevating business, which the individual carries on, with such a public character as to give the public the right to regulate the charges which the owner may make ? If the question affected a corporation, deriving its franchises and powers from the state, a different case would be presented. But here we have the case of an individual conducting his private business in a legitimate manner and owing nothing to the state for privileges or powers, or assistance conferred. He exercises the right, common to all, of engaging in a legitimate business for his own profit and gain.

I understand it to be the general role that the individual has. absolute liberty to pursue his avocations and to contract with respect to his property; subject only to the restriction that he may not interfere therein with his neighbor’s rights, or use of property. He is bound to use his own property so as not to injure his neighbor’s. That liberty I take to be guaranteed by the constitution to him and to be a most valuable right. What force or reason has the suggestion that the business of the individual sustains some important relation to a branch of trade, in which other persons are largely engaged, and that it is therefore public in its nature, and therefore it should become the subject of legislative control as to charges? Is it because those other persons complain of the charges, and allege that the business as managed by those engaged hi it is virtually a monopoly ? Has government any concern or interest in the price which one individual may demand of another, who resorts to him because of his superior business skill or facilities ? How does the magnitude or the publicity of an individual’s business furnish a valid reason for legislative interference ? Every business is in a measure public and is dependent upon public patronage for its maintenance and success. It is not compulsory upon the public to resort to these elevators, nor is the business exclusive, or beyond competition. There is a very wide distinction between those cases, which are referred to in the books, and which Lord Ellenborough speaks of, 12 East., 589, where the public have a right to resort to the premises of the individual and to make use of them, and that individual has a monopoly in them for that purpose, and the case of an individual prosecuting his own business upon his own premises, by no leave, privilege or franchise of the sovereign power. Here it is a matter of option, or rather of agreement with the owner, whether his premises may be resorted to and his property used by other persons. The public have no independent legal right to make use of them.

I believe the constitutional rights of the individual are directly attacked by this legislation. Under the pretence that his business has, by its magnitude and situation, become invested with a public interest, it is claimed to be brought within the right of the government to regulate. Where is t'-e limit to the exercise of sovereign power, if such a pretext is considered a justification ? Of what use are our vaunted constitutional guarantees, if we may be deprived of property rights on so flimsy a pretext ? It is said that the remedy for such oppressive and unjust legislation is to be found at the polls. I do not think that to be the only resort of the citizen. The constitutional guarantees were provided for, and are enforceable by him for his protection.

I cannot believe that the theory, or the frame of our form of "government, involved the idea that so great a power should be lodged in the legislature.

If the door is opened to this species of legislation, what protection have we against socialistic laws ? What is to prevent subsequent legislatures from interfering with any other kind of private enterprise, if, from improved methods in its conduct, and for peculiar reasons, it appears to the legislative body to virtually monopolize that branch of business, and that the owner takes advantage •of his diligence, or superior skill and advantages, to demand what to them seems an apparently high or even excessive price in his labor or property, of those who resort to him ? The legislature in effect says to the individual, when interfering to regulate the charges he may make in his business, it is true you are a private individual engaged in a private and legitimate business, in the prosecution of which you are authorized and protected by the •constitution, but, nevertheless, we think, in the public interest, because your business has become so advantageous and so necessary to a large portion of the public because of its superior facilities, that you shall not be allowed to pursue it, unless you reduce your charges to a rate fixed by us. As well may the legislature claim a right to interfere to reduce and regulate the charges which a combination of manufacturers have fixed for a certain line of goods. It seems to me that the theory of such legislation is a startling departure from the true conception of governmental functions. They should work to protect and develop private rights, and to secure to all individuals the uniform operation of the constitutional guarantees. The police power is incapable of being stretched to reach such a case as this, if we have any respect for the provisions of the constitution. That power is properly exercised in the preservation of the private rights of individuals in the maintenance of public order, in the supervision of public "health and morals, and. in the prevention of a conflict of rights. Its justification for interference with a private, legitimate business is admissible only when that business may be said to be affected by a public use or interest, by reason of some aid, grant or privilege conferred by the state.

Judge Cooley says, in his valuable work on Constitutional Limitations, page 737, “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.”

This act, in my opinion, was an unconstitutional exercise of power by the legislature. Such legislation was not demanded by the general welfare, and it violates the social compact under which we live. It is a subversion of the constitutional guarantee. It is against such legislation that the constitutional guaranty was framed, and that the' judicial power was intended by the constitution to afford protection to the individual.

I think the judgment should be reversed and the appellant discharged.

Judgment affirmed.

All concur, except Gray, J., who reads for reversal, and Peckham, J., who concurs with Gray, J.  