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 change 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 New 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 books 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 Steph. 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, or 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 his 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, in which all the public had a right to require 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 Railroad 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 they 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 privilege 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 provision 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 proportions large enough to enable the Legislature, in its discretion, to declare that 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 corn 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 Burlington Tp. 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. Manufacturing Co., 113 U. S. 9, in which case it was held by the Federal court that such a statute violated no clause of the

Federal 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, and 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 Manufacturing Co., 96 N. Y. 42, the company was or ganized 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, incidentally, 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 the structures 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 powers 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 public 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 accommodate 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 toward each other in this way, when necessary for what the Legislature should determine to be the pub. lic 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.

The clause in our Constitution that no person shall be 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 bis 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 to 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 a one, I assume, as is spoken of in the cases of Langdon v. Mayor, 93 N. Y. 129, and Williams v. Mayor, 105 id. 419, 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 graut of the land under

though 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. No 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 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 upou 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 Den. 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 cou

ferred 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 ja 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.

new,

The disposition of Legislatures to interfere in the ordinary concerns of the individual, as evidenced by the laws enacted by Parliaments and Legislatures from the earliest times, and the futility of such interference to accomplish the purposes intended, have been the subject of remark by some of the ablest of Englishspeaking observers. Buckle, in his History of Civilization in England, in speaking of the course of English legislation, says: "Every great reform which has beeu effected has consisted, not in doing something 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