text:
West Wisconsin Railway Company v. Foley/Opinion of the Court

ERROR to the Circuit Court of the United States for the Western District of Wisconsin.

The facts are stated in the opinion of the court.

Argued by Mr. William F. Vilas, for the defendant in error.

No counsel appeared for the plaintiff in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. It is clear that there is no error in this record. The answer does not state facts sufficient to constitute a defence to the action. No counsel have appeared to prosecute the suit, no brief has been filed, and no error assigned. We are entirely satisfied that the case has been brought here for delay, and that it is proper to adjudge 'just damages for delay,' under the provisions of sect. 1010, Rev. Stat. The only difficulty we have had has been in respect to the amount.

The original Judiciary Act of 1789 contained a similar provision to that embraced in sect. 1010. 1 Stat. 85, § 23. Under that, rules were adopted by this court at the February Term, 1803, by which it was provided that, in cases where it appeared that the writ had been sued out 'merely for delay, damages shall be awarded at the rate of ten per cent per annum on the amount of the judgment,' and in cases where there existed a real controversy, 'the damages shall be only at the rate of six per cent per annum. In both cases the interest to be computed as part of the damages.' Rules 17, 18; 1 Cranch, xviii. At the February Term, 1807, it was ordered that the damages given by these rules should be calculated to the day of the affirmance of the judgment in this court. 4 Cranch, Appendix.

In 1842, Congress enacted 'that on all judgments in civil cases. . . recovered in the Circuit and District Courts of the United States, interest shall be allowed,. . . to be calculated from the date of the judgment, and at such rate per annum as is allowed by law on judgments recovered in the courts of' 'the States in which such Circuit or District Court shall be held.' 5 Stat. 518, § 8. Notwithstanding this statute, the rule adopted previously remained in force without amendment until the case of Mitchell v. Harmony, 13 How. 115, decided at the December Term, 1851. Then it became necessary for this court to ascertain the amount due upon the judgment of the Circuit Court in that case after its affirmance; and the direct question was presented, whether only damages at the rate of six per cent should be added to the amount of the judgment, in accordance with the rule, or interest at seven per cent per annum, that being the rate allowed by law on judgments recovered in the courts of the State. After consideration, damages only were allowed according to the rule; but during the term the rule was amended, to take effect Dec. 1, 1852, so as to make it conform to the statute. 13 id. v. At the next term, December, 1852, a similar question was presented in Perkins v. Fourniquet, 14 id. 328. There a judgment of the Circuit Court of Mississippi had been affirmed at the December Term, 1851, and damages adjudged at the rate of six per cent per annum, as given by the rule, while the laws of Mississippi allowed interest on judgments in the State courts at eight per cent per annum. When the execution went out from the court below, it required the collection of the judgment with interest at the rate of eight per cent per annum, and damages at the rate of six per cent in addition. This action of the Circuit Court having been brought here for review, the recovery was limited to the amount of the judgment and the damages given by the rule. The opinion of the court, by Mr. Chief Justice Taney, proceeded upon the ground that the act of 1842 did not apply to judgments in this court, but to those in the Circuit and District Courts alone. The rules had been changed at the previous term, he said, not because of 'any supposed repugnancy between them and the act of 1842, but because the court deemed it just to place the judgments in this court upon the same footing with the judgments in the Circuit and District Courts; and that suitors in the courts of the United States should stand on the same ground with suitors in the State courts, in its appellate as well as in its inferior tribunals.' p. 331.

At the December Term, 1858, our rules were revised and corrected. No change was made in those relating to this subject, except that in cases where the writ of error was taken for delay only, it was provided that 'the damages shall be calculated from the date of the judgment in the court below until the money is paid.' 21 id. xiii., rule 23.

Under these rules it is apparent that 'just damages for delay' were made to taken the place of interest during the delay; and this practice continued until the December Term, 1870, when the present rule, in respect to cases where the writ appeared to have been sued out for delay merely, was adopted. It is as follows: 'In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of ten per cent, in addition to interest, shall be awarded upon the amount of the judgment.' 11 Wall. x.

This is a radical change, and requires us to consider the question of damages as something distinct from that of interest. Heretofore we have never found it necessary to decide whether, if damages are to be awarded at all, they must be to the full amount of ten per cent upon the judgment, or may be less. This case is one in which, as we think, that question is fairly presented. The defence, though not in law a good one, certainly shows some circumstances in mitigation of damages in excess of interest as compensation for delay.

Under the old rules, the court was sometimes asked to give damages beyond those prescribed. This was always denied; but, so far as we have been able to discover, it has never been decided that less could not be given, under proper circumstances. 'Shall' ought undoubtedly to be construed as meaning 'must,' for the purpose of sustaining or enforcing an existing right; but it need not be for creating a new one. Neither under the statute nor the rule has a party the legal right to demand a judgment for damages in excess of interest. The amount of the damages, as well as the propriety of giving any at all, is left to the judicial discretion of the court. This being the case, we think the rule may fairly be construed as limiting the amount beyond which we cannot go, but as leaving us at liberty to give less than the full sum in cases where, in our judgment, the circumstances are such as to make it proper to do so. An inflexible rule, requiring us to award a certain specified amount, or none at all, would oftentimes operate to defeat itself. The object is to discourage frivolous appeals, as well as to compensate to some extent for the loss which results from delay. Oftentimes ten per cent upon the amount of a judgment might far exceed the loss actually sustained; and in such cases we might delcine to award damages at all, if we could not give less, because of the wrong that would be inflicted if we did give them. Thus one of the benefits anticipated from the rule would be lost.

Under these circumstances we hold that while, with the rule in force, we cannot award as damages for delay more than ten per cent upon the amount of the judgment, we any, in the exercise of our discretion, give less.

Judgment affirmed, with costs, and five hundred dollars damages for the delay, in addition to interest at the rate allowed by law and the rules of this court.

NOTE.-In another case between the same parties, the same action was had by the court as in the preceding case.


text: Talk:West Wisconsin Railway Company v. Foley/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Commissioners of Douglas County v. Bolles

ERROR to the Circuit Court of the United States for the District of Kansas.

This was an action by Matthew Bolles and M. Shepard Bolles against the board of county commissioners of the county of Douglas, Kansas, upon sundry coupons attached to certain bonds issued by the county. The facts are stated in the opinion of the court.

The following questions of law arose, upon which the judges of the court below were divided in opinion:--

1. Whether, as respects the bonds dated July 1, 1869, and the coupons in suit originally attached to said bonds, there was authority and power in the board of county commissioners of the county to issue said bonds under the act of Feb. 10, 1865, recited in the bonds and other acts of the legislature of the State of Kansas, including the act of Feb. 25, 1868.

2. Whether the bonds mentioned in the preceding question are void in the hands of a holder for value without actual notice, because the vote on the question of subscribing stock and issuing bonds was had Sept. 12, 1865, before the organization of the company known as the St. Louis, Lawrence, and Denver Railroad Company was made in 1868, to which company the stock was subscribed in 1868, and the bonds were issued and delivered in 1871.

3. Said bonds having been issued upon the facts as found, was the issue of them illegal and invalid in such a sense as to devolve upon the plaintiffs the burden of showing that they, or those whom they represented, were holders of them for value?

4. Whether, as respects the bonds dated July 1, 1872, and the coupons in suit originally attached to said bonds, there was power and authority in the board of county commissioners of the county to issue the same.

5. Whether, upon the facts found, said bonds and coupons last named are void in the hands of a holder for value without actual notice of the orders for and facts connected with the election therefor, and with the organization of the said railroad company.

6. Said bonds having been issued under the facts as found, was the issue of them illegal and invalid in such a sense as to devolve upon the plaintiffs the burden of showing that they, or those whom they represented, were purchasers or holders of them for value?

7. Whether the facts found constitute or show a defence to the bonds of July 1, 1869, or the said bonds of July 1, 1872, the said bonds or coupons attached thereto in suit being in the hands of the plaintiffs, without affirmative proof that they were holders thereof for value without notice of said facts.

There was a judgment for the plaintiffs below; whereupon the defendants brought the case here.

Submitted on printed arguments by Mr. William M. Nevison for the plaintiffs in error, and by Mr. John S. Abbott, contra.

MR. JUSTICE STRONG delivered the opinion of the court.


text: Talk:Commissioners of Douglas County v. Bolles


text:
Commissioners of Douglas County v. Bolles/Opinion of the Court

Whether the St. Louis, Lawrence, and Denver Railroad Company was lawfully a corporation, capable of contracting with the defendants below, is a question that cannot be raised in this case. The findings of the Circuit Court establish that a majority of the persons named as corporators in the certificate filed in the office of the secretary of state on the eleventh day of May, 1868, published a notice that books would be opened on a designated day for subscriptions to the stock of the company. The books were accordingly opened, subscriptions to the capital stock were made, a meeting of the stockholders ensued, and directors were chosen, together with a president, vice-president, secretary, treasurer, and an executive committee. This was on the 28th of July, 1868; and from that time corporate meetings have been regularly held, and the company has built and operated a railroad from Lawrence to the Missouri State line, and has exercised the usual functions of a railroad corporation. It has been a corporation de facto, at least, if not de jure, from the date of its organization. Its corporate existence, therefore, and its ability to contract cannot be called in question in a suit brought upon evidences of debt given to it.

It was after the organization of the company that the defendants subscribed, on behalf of Douglas County, for $125,000 of its capital stock, stipulating that the subscription should be paid with the county bonds, payable to bearer in thirty years, and that the stock and bonds should be issued and delivered when the railroad should be completed and in full operation from Lawrence to the eastern boundary of Douglas County. The road was thus completed and put in operation; the county received the $125,000 of stock; and the bonds were sold by the railroad company to the contractor for building the road, and, after its completion, delivered to him by direction of the defendants.

The bonds were executed by the board of county commissioners of the county of Douglas, who by law are constituted the financial agents of the county. They were made payable to bearer, and each contains the following recital: 'This bond is executed and issued by virtue of and in accordance with the act of the legislature of the State of Kansas, entitled 'An Act to authorize counties and cities to issue bonds to railroad companies,' approved April 10, 1865, and the other laws of said State, and in pursuance of and in accordance with the vote of a majority of the qualified electors of said county of Douglas, at a special election, regularly called and held on Sept. 12, 1865.' This recital, it will be perceived, asserts legislative authority for the issue of the bonds, found in the statute of April 10, 1865, and other laws of the State. Referring to the act of 1865, it is there enacted that the 'board of county commissioners of any county to, into, through, from, or near which, whether in this or any other State, any railroad is or may be located, may subscribe to the capital stock of any such railroad corporation, in the name and for the benefit of the county, not exceeding in amount the sum of $300,000 in any one corporation, and may issue the bonds of said county in such amounts as they may deem best, in payment for said stocks, provided that said bonds shall be issued only in payment of assessments made upon all the stocks of such railroad company, which bonds shall bear interest at a rate not exceeding seven per cent per annum, and shall be payable within thirty years. But no such bonds shall be issued until the question shall be first submitted to a vote of the qualified electors of the county at some general election or at some special election to be called by the board of county commissioners,. . . and, in submitting such question, said board of commissioners shall direct in what manner the ballot shall be cast. If a majority of the votes cast at such election shall be in favor of issuing such bonds, the board of commissioners of the county shall issue the same.' Stats. of Kansas, 1865, p. 41. This statute plainly gives to the board plenary authority to subscribe for stock of a railroad corporation, and to issue county bonds in payment of the subscription, though whether such authority in any case may be exercised or not is made to depend upon the collateral question whether the result of a popular election has indicated an approval of the proposed issue. And the board of commissioners is the tribunal contemplated by the laws to determine whether the contingency of fact has occurred,-a determination necessary to be made preparatory to their issuing the county bonds.

The act of 1865 was followed by the act of Feb. 25, 1868, which was in force when the stock subscription above mentioned was made, and when the bonds of Douglas County were executed and delivered. This later act was even more liberal in its grants of authority than the former was. It referred to elections held before its passage, and to irregular elections, which might not have been in compliance with the statutes. It enacted, in substance, that whenever there had been an election called by the board, at which a majority of the persons voting had voted in favor of subscribing stock and issuing bonds to any railroad company or companies, the board might subscribe and pay the subscription, by issuing to each company the bonds of the county, whether such orders and elections, or either of them, had been in compliance with the statutes in such cases made and provided, or not, or whether the proposition submitted at the election was for the subscription for stock and issuance of bonds to one or more railroad companies. The purpose of this act was evidently to cure irregularities and invalidities of prior elections, and to enlarge the powers of county boards. Still, under this act, as under the former, the board was to judge whether the precedent condition had been complied with in substance. Gen. Stats. of Kansas, 892.

Such, then, having been the authority of the board of commissioners of Douglas County when the bonds now under consideration were issued, what must be the effect of the recitals they contain? The question has been frequently before us for decision, and it is no longer open for debate. In the late case of Town of Coloma v. Eaves, 92 U.S. 484, we considered it fully, and reviewed many of our former judgments. We there held that when, by legislative enactment, authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the enactment that the officers of the municipality were invested with power to decide whether that condition had been complied with, their recital that it had been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact and binding upon the municipality, for the recital is itself a decision of the fact by the appointed tribunal. The recitals we have now before us are that the bonds were executed and issued not only in virtue of, but in accordance with, the acts of the legislature, and in pursuance of and in accordance with the vote of a majority of the qualified electors of the county. They are untrue, if the board had not followed the directions of the law, and if there had not been a popular vote at an election, approving the issue of those bonds. The truth or falsehood of the assertion cannot be inquired after here; for, as we have said, the recitals are practically an annunciation of the judgment of the board, that all the steps required by the law had been taken.

Behind such a recital, as we have seen, a bona fide holder for value paid is bound to look for nothing except legislative authority given for the issue of municipal bonds to railroad companies. He is not required to examine whether the conditions upon which such authority may be exercised have been fulfilled. He may rely upon the decision made by the tribunal selected by the legislature.

Do, then, the plaintiffs below stand in the position of bona fide holders for value paid, and without notice of any defect or irregularity in the proceedings anterior to the issue of the bonds? In view of the findings of the Circuit Court, very plainly they do. They are the holders of the coupons in suit taken from those bonds, some of which they purchased without notice of any defence. The residue of those held by them are owned by other persons, who deposited them with the plaintiffs for collection, taking a receipt. There is no evidence when or for what consideration those other persons purchased, and no evidence of actual notice to them or to the plaintiffs of any of the facts anterior to the issue of the bonds. The findings of the court exhibit no fraud in the inception of the contracts, nor any thing that casts upon the holders of the bonds or coupons the burden of showing that they are bona fide holders for value. The legal presumption, therefore, is that they are. But the plaintiffs are not forced to rest upon mere presumption to support their claim to be considered as having the rights of purchasers without notice of any defence. They can call to their aid the fact that their predecessors in ownership were such purchasers. To the rights of those predecessors they have succeeded. Certainly, the railroad company paid for the bonds and coupons by giving an equal amount of their stock, which the county now holds; and nothing in the special facts found shows that the company knew of any irregularity or fault in the issue. And still more: the contractor for building the railroad received the bonds from the county in payment for his work, either in whole or in part, after his work had been completed. There is no pretence that he had notice of any thing that should have made him doubt their validity. Why was he not a bona fide purchaser for value? The law is undoubted, that every person succeeding him in the ownership of the bonds is entitled to stand upon his rights.

It is, therefore, manifest that the plaintiffs have the rights of bona fide purchasers, even if the burden of showing it be regarded as resting on them.

What we have said is sufficient to show that the coupons of the first class of bonds, viz., those dated July 1, 1869, are valid evidences of debts as between the plaintiffs and the defendants, and that the former are entitled to a judgment for the amount of them.

It is unnecessary to remark at length upon the second class of bonds and coupons, those dated July 1, 1872. The considerations we have suggested respecting the first apply in full force to the second, and the defendants have no defence to a suit for their recovery brought by the plaintiffs. The first and fourth questions certified from the Circuit Court are, therefore, answered in the affirmative, and the remaining questions in the negative. This leads to an affirmance of the judgment.

Happily, such a result is in accordance with the plainest justice. The case is not one in which the municipality has incurred a debt, without securing the object sought by it. Popular votes approved the issue of the bonds to further the construction of the railroad, which has been completed, and which the county now enjoys. The bonds have not been misappropriated or squandered. They have been applied to the purpose for which they were made. By direction of the county, they were paid to the contractor who built the road, after his contract was completed, and, as intended, they have gone into the hands of remote purchasers. In addition to this, the county received in exchange for them an equal amount of stock of the railroad company. So far as appears, it holds that stock still. It has acted as the owner, by assenting to a consolidation of the company with another. Common honesty demands that a debt thus incurred should be paid.

Judgment affirmed.


text: Talk:Commissioners of Douglas County v. Bolles/Opinion of the Court


text:
Hurst v. Hollingsworth

ON motion.

Mr. W. P. Ballinger for Hurst.

Mr. James Lowndes, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Hurst v. Hollingsworth


text:
Page:Haiti- Her History and Her Detractors.djvu/385

Rh Hill yesterday. "It is unquestionably a fact that large numbers of young children are offered up annually in Haiti as sacrifices to the great yellow snake. Indeed, it is known that mothers frequently dedicate their infants at birth to this purpose, the fatal ceremony being postponed ordinarily until the victim has reached the age of two years. Invariably the ritual winds up with a feast the details of which are too horrible to be described. Only when human prey is not obtainable is a black goat, which must not have a white spot on it, used as a substitute, or a white cock. The cock chosen for this purpose is always one of those freak chickens which have their feathers growing the wrong way."

Such are the things which Professor Hill was made to say. The particulars seemed to be accurate enough and were intended to give to the account all appearances of truth; there was nevertheless not a word of truth in the story, which was fabricated solely with the intention of casting opprobrium on Haiti. Mr. E. D. Bassett, who was United States Minister to Haiti and lived at Port-au-Prince for more than nine years, hastened to confute this calumny. The following is an extract from Mr. Bassett's article which was printed in the New York Sun of the 24th of March, 1901: "As the diplomatic representative of a great Power it was a part of my official duty to inform myself of everything that tended to show the animus of the people or the drift of their social and political inclinations. I do not see how any foreigner could ever have fuller facilities than I enjoyed for getting at the real facts. I went among the country people. I spoke their language (the French Creole) and I personally knew hundreds of them in many different localities. I could never discover that there was any attempt to conceal from me anything of their modes of life or social or religious customs. It is fair to presume that if there had been any such attempt or purpose at all general or persisted in, I would have become aware of it.

"This brings me to assert my unqualified belief that the cannibalistic practises alleged to have been described by Professor Hill and affirmed by others have no existence whatever in Haiti. Even if they did exist there, it would be most extraordinary—I repeat it, most extraordinary—if Professor Hill or any other white person could ever gain access to them. "Primitive dances to primitive music, festivals and celebrations also primitive in character and held on holidays and evenings after the day's toil is over, exist and may even be said to abound among the peasantry of Haiti just as in other countries. If Professor Hill or any other foreigner ever saw or in any way witnessed in Haiti a 'ceremony' to which he was unaccustomed and which he might on that account and in view of the declarations of Spenser St. John and others twist into a 'voodoo ceremony of which cannibalism is a conspicuous feature,' it was probably one of these innocent dances or festivals.

Diligent inquiry made upon the spot under the conditions and exceptional facilities already explained and running through quite a number of years utterly failed to bring within my knowledge any person who had ever seen or knew of anybody else who had seen or knew of his or her own personal knowledge of any such horrible practises as Professor Hill is alleged to have described, and I solemnly declare my unqualified conviction that the whole story about cannibalism in Haiti is nothing more than a myth, which, like many other myths, has gained credence by persistent repetition.

And it is due to the Haitian people as well as to a true statement of the matter, that I should add as I do that in my opinion the existence of any practise by which, as Professor Hill is said to have declared, the sacrifice of 'large numbers' or any number at all of 'very young children' or of any one human being, would be regarded in Haiti with the same abhorrence as it would be in New York or Pennsylvania.

Now there are in Haiti eighty-six communes, a commune being somewhat like a town in Massachusetts or Connecticut, and there are one hundred and fifty Roman Catholic priests so stationed throughout the Republic that no commune is without one or more priests of this faith. Almost every one of these is a European, born, brought up, and educated in Europe, and sent out to Haiti under the strict rules of the Church and the requirements of the Concordat with the Holy See. And besides there are about thirty clergymen of the Protestant faith. The Government gives liberal support and encouragement to all, Catholic and Protestant alike. "Professor Hill is surely in error in his alleged assertion that 'there are few priests permanently resident in their parishes.' The fact is that no parish is ever left without a priest in charge, and the serious allegation that the churches of that faith are desecrated by the performance within their sacred walls of the alleged voodoo rites is little less than a signal indignity offered to the Church as a whole. No such a proceeding is more possible in Haiti than it would be in New England.

If now so horrible and shocking a practise as that of cannibalism under the guise of religion or any other cloak existed at all in Haiti, how could it be that this considerable body of educated, devoted religious teachers, the vast majority of whom are Europeans, keep silent about it through all these years and years? Surely they are all at least civilized men, and if so horrible and revolting a practise as that of cannibalism existed at all in Haiti they would surely know of it. If it existed, and the great body of priesthood had agreed to throw a cloak over it, how could it ever happen that none of them through years and years has ever let leak out at least some hint about its existence? In other words, how is it that the story is in general left to be told by fleeting visitors who never or at any rate rarely go among the country people and who know little or nothing of their language?" Thereupon Professor


text: Talk:Hurst v. Hollingsworth

title: Talk:Hurst v. Hollingsworth


text:
Hurst v. Hollingsworth/Opinion of the Court

Hurst, the plaintiff below, being in doubt whether his case was one to be brought here by appeal or by writ of error, took the precaution of suing out a writ of error, and also of obtaining the allowance of an appeal. At the proper time he filed a transcript of the record, and the cause was docketed by the clerk as upon a writ of error; thereupon the defendant moved to docket and dismiss the appeal. Hurst now appears and asks leave to docket his appeal. The defendant does not object to this, but, treating it as an election for Hurst to proceed here upon the appeal, moves to dismiss the writ of error.

These motions are all denied. There was but one action in the court below, and there is but one record. When the transcript of that record was brought here by Hurst, his cause was docketed. It is not necessary to enter it twice, because, out of abundant caution and to guard against a possible chance of dismissal, he has brought it here in two ways. He has but one cause; and, when we come to examine it, we will determine whether it is properly here by appeal or by writ of error, and will proceed accordingly.

Motions denied.


text: Talk:Hurst v. Hollingsworth/Opinion of the Court


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Page:Haiti- Her History and Her Detractors.djvu/386

350 Hill wrote the following letter to the New York Sun of the 26th of March, 1901: "To the Editor of the . "Sir: I notice a lengthy communication on your editorial page of to-day from ex-Minister Bassett correcting certain alleged assertions of mine concerning cannibalism and voodooism in Haiti.

"Permit me to say that your correspondent, whose communication was most courteous, labors under a mistake in thinking that I said the things which it is alleged that I said. The article in the Washington Post and other papers concerning Haiti purporting to be an interview with me was not written by me at all. It was written as a syndicate article by my friend, Mr. René Bache, and contrary to his usual custom, and no doubt unintentionally on his part, did not correctly quote me.

"I have personally seen no cannibalism in Haiti and written nothing concerning the Republic except the matter contained in my book on 'Cuba and Porto Rico


text:
Dayton v. Lash

ON motion to dismiss an appeal from the Circuit Court of the United States for the District of Minnesota.

Mr. Lorenzo Allis in support of the motion.

Mr. Thomas J. Durant, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Dayton v. Lash


text: Talk:Dayton v. Lash

title: Talk:Dayton v. Lash


text:
Dayton v. Lash/Opinion of the Court

This record shows that an appeal was allowed, a supersedeas bond approved, and a citation signed Feb. 26, 1876; but it does not show a service of the citation, and the affidavits presented upon this motion fail to satisfy us that proper service was ever in fact made. The appeal was, however, duly obtained; and the record has been filed and the cause docketed here. We have, therefore, the record; but a service of the citation is necessary to bring the parties before us, as the appeal was taken out of term. We cannot proceed to hear and determine the cause until the parties are here, either constructively by service, or in fact by their appearance.

Perhaps the language of Mr. Chief Justice Taney, in Villabolos v. United States, 6 How. 90, and in United States v. Curry, id. 112, as well as of Mr. Justice Nelson, in City of Washington v. Dennison, 6 Wall. 496, if read literally and without reference to the facts then under consideration, may be broad enough to justify a dismissal of this appeal, because the citation was not served before the first day of the term. But in the case of Villabolos, the real question was as to the validity of the citation, and not as to its service, if valid; in Curry's case, the citation was not issued until after the term at which the appeal was returnable; and in City of Washington v. Dennison, the effort was to obtain a supersedeas in a case where the writ was not sealed until eleven days after the rendition of the judgment. None of the cases made it necessary to decide that a citation actually issued upon the allowance of an appeal must be served before the first day of the term, in order to preserve our jurisdiction; and we think that such an omission does not avoid the appeal, but rather furnishes a case where, under the rule in Martin v. Hunter's Lessee, 1 Wheat. 361, and followed in Davidson v. Lanier, 4 Wall. 454, we 'may grant summary relief' 'by imposing such terms upon the appellants as under the circumstances may be legal and proper.'

As this appeal was returnable to the present term, and some attempt was made to serve the citation, which the appellants may have supposed was actually completed, we order that, unless the appellants cause a new citation, returnable on the first Monday in February next, to be issued and served upon the appellee before that date, the appeal be dismissed.

title: Dayton v. Lash/Opinion of the Court


text: Talk:Dayton v. Lash/Opinion of the Court


text:
Munn v. Illinois

ERROR to the Supreme Court of the State of Illinois.

The Constitution of Illinois, adopted in 1870, contains the following in reference to the inspection of grain, and the storage thereof in public warehouses:--

'ARTICLE XIII.-WAREHOUSES.

'SECTION 1. All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses.

'SECT. 2. The owner, lessee, or manager of each and every public warehouse situated in any town or city of not less than one hundred thousand inhabitants, shall make weekly statements under oath before some officer designated by law, and keep the same posted in some conspicuous place in the office of such warehouse; and shall also file a copy for public examination in such place as shall be designated by law, which statement shall correctly set forth the amount and grade of each and every kind of grain in such warehouse, together with such other property as may be stored therein, and what warehouse receipts have been issued, and are, at the time of making such statement, outstanding therefor; and shall, on the copy posted in the warehouse, note daily such changes as may be made in the quantity and grade of grain in such warehouse; and the different grades of grain shipped in separate lots shall not be mixed with inferior or superior grades, without the consent of the owner or consignor thereof.

'SECT. 3. The owners of property stored in any warehouse, or holder of a receipt for the same, shall always be at liberty to examine such property stored, and all the books and records of the warehouse in regard to such property.

'SECT. 4. All railroad companies, and other common carriers on railroads, shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsible for the delivery of such amount to the owner or consignee thereof, at the place of destination.

'SECT. 5. All railroad companies receiving and transporting grain, in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it may be consigned, provided such consignee, or the elevator, or public warehouse, can be reached by any track owned, leased, or used, or which can be used, by such railroad company; and all railroad companies shall permit connections to be made with their tracks, so that any such consignee, and any public warehouse, coal-bank, or coal-yard may be reached by the cars on said railroad.

'SECT. 6. It shall be the duty of the general assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give full effect to this article of the Constitution, which shall be liberally construed, so as to protect producers and shippers. And the enumeration of the remedies herein named shall not be construed to deny to the general assembly the power to prescribe by law such other and further remedies as may be found expedient, or to deprive any person of existing common-law remedies.

'SECT. 7. The general assembly shall pass laws for the inspection of grain, for the protection of producers, shippers, and receivers of grain and produce.'

The provisions of the act of the general assembly of Illinois, entitled 'An Act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to art. 13 of the Constitution of this State,' approved April 25, 1871, so far as the same have any direct bearing upon the questions involved in this case, are as follows:--

'SECTION 1. Be it enacted by the people of the State of Illinois, represented in the general assembly, that public warehouses, as defined in art. 13 of the Constitution of this State, shall be divided into three classes, to be designated as classes A, B, and C, respectively.

'SECT. 2. Public warehouses of class A shall embrace all warehouses, elevators, or granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved, such warehouses, elevators, or granaries, being located in cities having not less than one hundred thousand inhabitants. Public warehouses of class B shall embrace all other warehouses, elevators, or granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together. Public warehouses of class C shall embrace all other warehouses or places where property of any kind is stored for a consideration.

'SECT. 3. The proprietor, lessee, or manager of any public warehouse of class A shall be required, before transacting any business in such warehouse, to procure from the Circuit Court of the county a license, permitting such proprietor, lessee, or manager to transact business as a public warehouseman under the laws of this State, which license shall be issued by the clerk of said court upon a written application, which shall set forth the location and name of such warehouse, and the individual name of each person interested as owner or principal in the management of the same, or, if the warehouse be owned or managed by a corporation, the names of the president, secretary, and treasurer of such corporation shall be stated; and the license shall give authority to carry on and conduct the business of a public warehouse of class A in accordance with the laws of this State, and shall be revocable by the said court upon a summary proceeding before the court, upon complaint of any person in writing setting forth the particular violation of law, and upon satisfactory proof to be taken in such manner as may be directed by the court.

'SECT. 4. The person receiving a license as herein provided shall file, with the clerk of the court granting the same, a bond to the people of the State of Illinois, with good and sufficient surety, to be approved by said court, in the penal sum of $10,000, conditioned for the faithful performance of his duty as a public warehouseman of class A, and the full and unreserved compliance with all laws of this State in relation thereto.

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

'SECT. 15. Every warehouseman of public warehouses of class A shall be required, during the first week of January of each year, to publish in one or more of the newspapers (daily, if there be such) published in the city in which such warehouse is situated, a table or schedule of rates for the storage of grain in the warehouse during the ensuing year, which rates shall not be increased (except as provided for in sect. 16 of this act) during the year; and such published rates, or any published reduction of them, shall apply to all grain received into such warehouse from any person or source; and no discrimination shall be made, directly or indirectly, for or against any charges made by such warehouseman for the storage of grain.

'The maximum charge of storage and handling of grain, including the cost of receiving and delivering, shall be for the first thirty days or part thereof two cents per bushel, and for each fifteen days or part thereof, after the first thirty days, one-half of one cent per bushel; provided, however, that grain damp or liable to early damage, as indicated by its inspection when received, may be subject to two cents per bushel storage for the first ten days, and for each additional five days or part thereof, not exceeding one-half of one per cent per bushel.'

On the twenty-ninth day of June, 1872, an information was filed in the Criminal Court of Cook County, Ill., against Munn & Scott, alleging that they were, on the twenty-eighth day of June, 1872, in the city of Chicago, in said county, the managers and lessees of a public warehouse, known as the 'North-western Elevator,' in which they then and there stored grain in bulk, and mixed the grain of different owners together in said warehouse; that the warehouse was located in the city of Chicago, which contained more than one hundred thousand inhabitants; that they unlawfully transacted the business of public warehousemen, as aforesaid, without procuring a license from the Circuit Court of said county, permitting them to transact business as public warehousemen, under the laws of the State.

To this information a plea of not guilty was interposed.

From an agreed statement of facts, made of the record, it appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the 'North-western Elevator,' and erected thereon the grain warehouse or elevator in that year, with their own capital and means; that they ever since carried on, in said elevator, the business of storing and handling grain for hire, for which they charged and received, as a compensation, the rates of storage which had been, from year to year, agreed upon and established by the different elevators and warehouses in the city of Chicago, and published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication. On the twenty-eighth day of June, 1872, Munn & Scott were the managers and proprietors of the grain warehouse known as 'The North-western Elevator,' in Chicago, Ill., wherein grain of different owners was stored in bulk and mixed together; and they then and there carried on the business of receiving, storing, and delivering grain for hire, without having taken a license from the Circuit Court of Cook County, permitting them, as managers, to transact business as public warehousemen, and without having filed with the clerk of the Circuit Court a bond to the people of the State of Illinois, as required by sects. 3 and 4 of the act of April 25, 1871. The city of Chicago then, and for more than two years before, had more than one hundred thousand inhabitants. Munn & Scott had stored and mixed grain of different owners together, only by and with the express consent and permission of such owners, or of the consignee of such grain, they having agreed that the compensation should be the published rates of storage.

Munn & Scott had complied in all respects with said act, except in two particulars: first, that had not taken out a license, nor given a bond, as required by sects. 3 and 4; and, second, they had charged for storage and handling grain the rates established and published in January, 1872, which were higher than those fixed by sect. 15.

The defendants were found guilty, and fined $100.

The judgment of the Criminal Court of Cook County having been affirmed by the Supreme Court of the State, Munn & Scott sued out this writ, and assign for error:--

1. Sects. 3, 4, 5, and 15 of the statute are unconstitutional and void.

2. Said sections are repugnant to the third clause of sect. 8 of art. 1, and the sixth clause of sect. 9, art. 1, of the Constitution of the United States, and to the Fifth and [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]s.

Mr. W. C. Goudy, with whom was Mr. John N. Jewett, for the plaintiffs in error.

The plaintiffs in error could not safely take a license and give a bond, as required by sects. 3 and 4 of the act, because they would thereby waive the right to question the validity of the act. Cooley on Const. Lim. 181; Baker v. Braman, 6 Hill, 511; Ferguson v. Landrum, 1 Bush (Ky.), 548; ''Home Ins. Co. v. Security Ins. Co.'', 23 Wis. 171.

1. The third, fourth, fifth, and fifteenth sections of the act, under which the plaintiffs in error were convicted and fined, are repugnant to the third clause, § 8, art. 1, of the Constitution of the United States, which confers upon Congress power to regulate commerce with foreign nations and among the several States. Ward v. Maryland, 12 Wall. 418; Case of the State Freight Tax, 15 id. 232; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Osborne v. Mobile, 16 Wall. 479; Woodruff v. Parham, 8 id. 123; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; City of New York v. Miln, 11 Pet. 102.

2. These sections are also repugnant to the sixth clause of sect. 9, art. 1, of the Constitution, which ordains that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.

3. They are also repugnant to that part of the first section of art. 14 of the amendments to the Constitution of the United States which ordains that no State shall deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws: 5 Webster's Works, 487; Coke's Inst. 46-50; Murray's Lessee v. ''Hoboken Land and Imp. Co.'', 18 How. 272; Hoke v. Henderson, 4 Dev. (N. C.) 15; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 393; Cooley on Const. Lim. 351 et seq.; Pumpelly v. Green Bay Co., 13 Wall. 166; Sinnickson v. Johnson, 2 Harr. (N. J.) 129; Gardner v. Newburgh, 2 Johns. Ch. 162; also cases cited in note, 13 Wall. 179; Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; Cooley on Const. Lim. 290; Walker v. Whitehead, 16 Wall. 314; Rowley v. Hooker, 21 Ind. 144; Ogden v. Saunders, 12 Wheat. 259; Willard v. Longstreet, 2 Doug. (Mich.) 172; Gantly's Lessee v. Ewing, 3 How. 707; and are not within the limits of the police power of the State: 4 Black. Com. 162; Bentham (Edin. ed.), part ix. 157; Cooley on Const. Lim. 572, 577; Thorpe v. I. & M. Railroad Co., 27 Vt. 149; Com. v. Alger, 7 Cush. 84; 2 Kent, Com. 340; People v. I. & M. Railroad Co., 9 Mich. 307; Lake View v. ''Rosehill Cem. Co., 6 Chicago Legal News, 120; Benson v. Mayor'', 10 Barb. 245; Vanderbilt v. Adams, 7 Cow. (N. Y.) 449; Broom's Legal Maxims, 357.

They do not regulate the use of property for the future, but deprive the plaintiffs in error of property in existence, and used by them for years prior to the passage of the law. Wynehamer v. People, 13 N. Y. 378; Com. v. Alger, 7 Cush. (Mass.) 84; Bartemeyer v. Iowa, 18 Wall. 129.

The following authorities are directly in point against the exercise of such power: Cooley on Const. Lim. 393; ''Doe ex dem. Gaines v. Buford, 1 Dana (Ky.), 490; Webb v. Baird'', 6 Ind. 17; and the examples of legislation in regard to usury, ferries, mills, hackmen, &c., are not precedents justifying it: 7 Bac. Abr. 188 (ed. 1807); Angell on Highways, §§ 47, 48; Birset v. Hart, Willes, 508; Mills v. County of St Clair, Mills v. County of St Clair, 23 Ill. 369; 15 Vin. Abr. 398; Hix v. Gardner, Bulst. 195.

The sections in question are repugnant to the provision of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]], that no State shall deny to any person within its jurisdiction the equal protection of the laws. Cooley on Const. Lim. 391; Walley's Heirs v. Keenedy, 2 Yerg. (Tenn.) 554.

The provisions of the Constitution of Illinois in regard to warehouses do not affect the questions. Railroad Company v. McClure, 10 Wall. 511; Home of the Friendless v. Rouse, 8 id. 430; The Washington University v. Rouse, id. 439.

Mr. James K. Edsall, Attorney-General of Illinois, contra.

1. The statute is not a regulation of commerce within the purview of the Constitution. Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, id 148; Osborne v. Mobile, 16 id. 479; Nathan v. Louisiana, 8 How. 73; People v. ''Saratoga & Rens. Railroad Co.'', 15 Wend. 135; Gibbons v. Ogden, 9 Wheat. 1; Slaughter-House Cases, 16 Wall. 36; Gilman v. Philadelphia, 3 id. 713; City of New York v. Miln, 11 Pet. 102; Crandall v. State of Nevada, 6 Wall. 35; Brown v. Maryland, 12 Wheat. 419; License Cases, 5 How. 504.

2. If the statute is in any sense a regulation of inter-state commerce, it belongs to that class of powers which may be exercised by the State in the absence of conflicting congressional legislation. Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299; Gilman v. Philadelphia, supra; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Crandall v. State of Nevada, supra; License Cases, supra.

3. The statute is not repugnant to that clause of the Constitution which prohibits giving a 'preference to the ports of one State over those of another.' That clause imposes a limitation only upon the powers of Congress.

4. The statute does not deprive persons of their property without due process of law. Cooley on Const. Lim. 541; Slaughter-House Cases, supra; Sharpless v. Mayor of Philadelphia, 27 Pa. St. 166; Grant v. Courter, 24 Barb. (N. Y.) 232; Commonwealth v. Tewksbury, 11 Met. 55; Commonwealth v. Alger, 7 Cush. (Mass.) 84; ''Met. Board of Police v. Barrett, 34 N. Y. 667; Bartemeyer v. Iowa'', 18 Wall. 133.

5. Warehousemen for the storage of grain in the manner the business is conducted at Chicago are engaged in a public employment, as distinguished from ordinary business pursuits. In this regard they occupy a position similar to common carriers, who are held to 'exercise a sort of public office,' and have public duties to perform. ''N. J. Steam Nav. Co. v. Merchants' Bank'', 6 How. 344; Sanford v. Railroad Company, 24 Penn. St. 381; Coggs v. Bernard, 2 Ld. Raym. 909; C. & N. W. Railroad Co. v. The People, 56 Ill. 377.

Like common carriers, they are required by law to receive grain from all persons, and store the same upon equal terms and conditions. Rev. Stat. of Ill. (of 1874), p. 821, § 101; Ross v. Johnson, 5 Burr. 2827; Low v. Martin, 18 Ill. 288; Steinman v. Wilkins, 7 Watts & S. (Pa.) 466, 468.

Although the ownership of the property is private, the use may be public in a strict, legal sense; hence, in adjudicated cases, the terms 'public wharves,' 'public roads,' 'public houses,' and 'public warehouses,' are of frequent occurrence, although the property may be the subject of private ownership. Dutton v. Strong, 1 Black, 32; Ives v. Hartley, 51 Ill. 523; Olcott v. The Supervisors, 16 Wall. 678.

6. Whenever any person pursues a public calling, and sustains such relations to the public that the people must of necessity deal with him, and are under a moral duress to submit to his terms if he is unrestrained by law, then, in order to prevent extortion and an abuse of his position, the price he may charge for his services may be regulated by law. Commonwealth v. Duane, 98 Mass. 1; State v. Perry, 5 Jones (N. C.) L. 252; State v. Nixon, id. 258; Bac. Abr. tit. 'Carriers,' D.; Murray's Lessee et al. v. ''Hoboken Land and Imp. Co.'', 18 How. 272; Kirkham v. Shawcrass, 6 T. R. 17; 2 Peake N. P. C. 185; 10 M. & W. 415; Ogden v. Saunders, 12 Wheat. 259; Mills v. County Commissioners, 4 Ill. 53; Trustees of Schools v. Tatman, 13 id. 37.

If grain warehousemen in Chicago 'pursue a public employment,' or 'exercise a sort of public office,' and sustain such relations to the public that all the grain consigned to 'the greatest grain market in the world' must necessarily pass through their hands, the State of Illinois, in virtue of its unquestionable power to regulate its internal commerce, may enact laws prescribing maximum rates of storage. The storage of grain offered for sale in the markets of a State most clearly pertains to its internal or domestic commerce.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Munn v. Illinois


text: Talk:Munn v. Illinois

title: Talk:Munn v. Illinois


text:
Munn v. Illinois/Opinion of the Court

The question to be determined in this case is whether the general assembly of Illinois can, under the limitations upon the legislative power of the States imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses at Chicago and other places in the State having not less than one hundred thousand inhabitants, 'in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved.'

It is claimed that such a law is repugnant—

1. To that part of sect. 8, art. 1, of the Constitution of the United States which confers upon Congress the power 'to regulate commerce with foreign nations and among the several States;'

2. To that part of sect. 9 of the same article which provides that 'no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another;' and

3. To that part of amendment 14 which ordains that no State shall 'deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

We will consider the last of these objections first.

Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained.

The Constitution contains no definition of the word 'deprive,' as used in the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection.

While this provision of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several States of the Union. By the [[United States Bill of Rights|Fifth Amendment]], it was introduced into the Constitution of the United States as a limitation upon the powers of the national government, and by the Fourteenth, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the States.

When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained for the purposes of government all the powers of the British Parliament, and through their State constitutions, or other forms of social compact, undertook to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions.

When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. 'A body politic,' as aptly defined in the preamble of the Constitution of Massachusetts, 'is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583, 'are nothing more or less than the powers of government inherent in every sovereignty,. . . that is to say,. . . the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. With the [[United States Bill of Rights|Fifth Amendment]] in force, Congress, in 1820, conferred power upon the city of Washington 'to regulate. . . the rates of wharfage at private wharves,. . . the sweeping of chimneys, and to fix the rates of fees therefor,. . . and the weight and quality of bread,' 3 Stat. 587, sect. 7; and, in 1848, 'to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of commission of auctioneers,' 9 id. 224, sect. 2.

From this it is apparent that, down to the time of the adoption of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]], it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular: it simply prevents the States from doing that which will operate as such a deprivation.

This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is 'affected with a public interest, it ceases to be juris privati only.' This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.

Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris, 1 Harg. Law Tracts, 6, the king has 'a right of franchise or privilege, that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the common use of all the king's subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing if 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, viz., that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable.' So if one owns the soil and landing-places on both banks of a stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this because the common good requires that all public ways shall be under the control of the public authorities. This privilege or prerogative of the king, who in this connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the general welfare.

And, again, as to wharves and wharfingers, Lord Hale, in his treatise De Portibus Maris, already cited, says:--

'A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own. . . . If the king or subject have a public wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only licensed by the queen,. . . or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c., neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the king's license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest.'

This statement of the law by Lord Hale was cited with approbation and acted upon by Lord Kenyon at the beginning of the present century, in Bolt v. Stennett, 8 T. R. 606.

And the same has been held as to warehouses and warehousemen. In Aldnutt v. Inglis, 12 East, 527, decided in 1810, it appeared that the London Dock Company had built warehouses in which wines were taken in store at such rates of charge as the company and the owners might agree upon. Afterwards the company obtained authority, under the general warehousing act, to receive wines from importers before the duties upon the importation were paid; and the question was, whether they could charge arbitrary rates for such storage, or must be content with a reasonable compensation. Upon this point Lord Ellenborough said (p. 537):--

'There is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property, or the use of it; but if for a particular purpose the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must, as an equivalent, perform the duty attached to it on reasonable terms. The question then is, whether, circumstanced as this company is, by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing. And, according to him, whenever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf.'

And further on (p. 539):--

'It is enough that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches, as laid down by Lord Hale in the passage referred to [that from De Portibus Maris already quoted], which includes the good sense as well as the law of the subject.'

And in the same case Le Blanc, J., said (p. 541):--

'Then, admitting these warehouses to be private property, and that the company might discontinue this application of them, or that they might have made what terms they pleased in the first instance, yet having, as they now have, this monopoly, the question is, whether the warehouses be not private property clothed with a public right, and, if so, the principle of law attaches upon them. The privilege, then, of bonding these wines being at present confined by the act of Parliament to the company's warehouses, is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to pay an arbitrary but a reasonable rent? But upon this record the company resist having their demand for warehouse rent confined within any limit; and, though it does not follow that the rent in fact fixed by them is unreasonable, they do not choose to insist on its being reasonable for the purpose of raising the question. For this purpose, therefore, the question may be taken to be whether they may claim an unreasonable rent. But though this be private property, yet the principle laid down by Lord Hale attaches upon it, that when private property is affected with a public interest it ceases to be juris privati only; and, in case of its dedication to such a purpose as this, the owners cannot take arbitrary and excessive duties, but the duties must be reasonable.'

We have quoted thus largely the words of these eminent expounders of the common law, because, as we think, we find in them the principle which supports the legislation we are now examining. Of Lord Hale it was once said by a learned American judge,--

'In England, even on rights of prerogative, they scan his words with as much care as if they had been found in Magna Charta; and the meaning once ascertained, they do not trouble themselves to search any further.' 6 Cow. (N. Y.) 536, note.

In later times, the same principle came under consideration in the Supreme Court of Alabama. That court was called upon, in 1841, to decide whether the power granted to the city of Mobile to regulate the weight and price of bread was unconstitutional, and it was contended that 'it would interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate;' but the court said, 'there is no notive. . . for this interference on the part of the legislature with the lawful actions of individuals, or the mode in which private property shall be enjoyed, unless such calling affects the public interest, or private property is employed in a manner which directly affects the body of the people. Upon this principle, in this State, tavern-keepers are licensed;. . . and the County Court is required, at least once a year, to settle the rates of innkeepers. Upon the same principle is founded the control which the legislature has always exercised in the establishment and regulation of mills, ferries, bridges, turnpike roads, and other kindred subjects.' Mobile v. Yuille, 3 Ala. N. S. 140.

From the same source comes the power to regulate the charges of common carriers, which was done in England as long ago as the third year of the reign of William and Mary, and continued until within a comparatively recent period. And in the first statute we find the following suggestive preamble, to wit:-- 'And whereas divers wagoners and other carriers, by combination amongst themselves, have raised the prices of carriage of goods in many places to excessive rates, to the great injury of the trade: Be it, therefore, enacted,' &c. 3 W. & M. c. 12, § 24; 3 Stat. at Large (Great Britain), 481.

Common carriers exercise a sort of public office, and have duties to perform in which the public is interested. ''New Jersey Nav. Co. v. Merchants' Bank'', 6 How. 382. Their business is, therefore, 'affected with a public interest,' within the meaning of the doctrine which Lord Hale has so forcibly stated.

But we need not go further. Enough has already been said to show that, when private property is devoted to a public use, it is subject to public regulation. It remains only to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this principle.

For this purpose we accept as true the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error. From these it appears that 'the great producing region of the West and North-west sends its grain by water and rail to Chicago, where the greater part of it is shipped by vessel for transportation to the seaboard by the Great Lakes, and some of it is forwarded by railway to the Eastern ports. . . . Vessels, to some extent, are loaded in the Chicago harbor, and sailed through the St. Lawrence directly to Europe. . . . The quantity [of grain] received in Chicago has made it the greatest grain market in the world. This business has created a demand for means by which the immense quantity of grain can be handled or stored, and these have been found in grain warehouses, which are commonly called elevators, because the grain is elevated from the boat or car, by machinery operated by steam, into the bins prepared for its reception, and elevated from the bins, by a like process, into the vessel or car which is to carry it on. . . . In this way the largest traffic between the citizens of the country north and west of Chicago and the citizens of the country lying on the Atlantic coast north of Washington is in grain which passes through the elevators of Chicago. In this way the trade in grain is carried on by the inhabitants of seven or eight of the great States of the West with four or five of the States lying on the sea-shore, and forms the largest part of inter-state commerce in these States. The grain warehouses or elevators in Chicago are immense structures, holding from 300,000 to 1,000,000 bushels at one time, according to size. They are divided into bins of large capacity and great strength. . . . They are located with the river harbor on one side and the railway tracks on the other; and the grain is run through them from car to vessel, or boat to car, as may be demanded in the course of business. It has been found impossible to preserve each owner's grain separate, and this has given rise to a system of inspection and grading, by which the grain of different owners is mixed, and receipts issued for the number of bushels which are negotiable, and redeemable in like kind, upon demand. This mode of conducting the business was inaugurated more than twenty years ago, and has grown to immense proportions. The railways have found it impracticable to own such elevators, and public policy forbids the transaction of such business by the carrier; the ownership has, therefore, been by private individuals, who have embarked their capital and devoted their industry to such business as a private pursuit.'

In this connection it must also be borne in mind that, although in 1874 there were in Chicago fourteen warehouses adapted to this particular business, and owned by about thirty persons, nine business firms controlled them, and that the prices charged and received for storage were such 'as have been from year to year agreed upon and established by the different elevators or warehouses in the city of Chicago, and which rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication.' Thus it is apparent that all the elevating facilities through which these vast productions 'of seven or eight great States of the West' must pass on the way 'to four or five of the States on the seashore' may be a 'virtual' monopoly.

Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the cartman, or the hackney-coachman, pursues a public employment and exercises 'a sort of public office,' these plaintiffs in error do not. They stand, to use again the language of their counsel, in the very 'gateway of commerce,' and take toll from all who pass. Their business most certainly 'tends to a common charge, and is become a thing of public interest and use.' Every bushel of grain for its passage 'pays a toll, which is a common charge,' and, therefore, according to Lord Hale, every such warehouseman 'ought to be under public regulation, viz., that he. . . take but reasonable toll.' Certainly, if any business can be clothed 'with a public interest, and cease to be juris privati only,' this has been. It may not be made so by the operation of the Constitution of Illinois or this statute, but it is by the facts.

We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitution in 1870, saw fit to make it the duty of the general assembly to pass laws 'for the protection of producers, shippers, and receivers of grain and produce,' art. 13, sect. 7; and by sect. 5 of the same article, to require all railroad companies receiving and transporting grain in bulk or otherwise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such company, and that all railroad companies should permit connections to be made with their tracks, so that any public warehouse, &c., might be reached by the cars on their railroads. This indicates very clearly that during the twenty years in which this peculiar business had been assuming its present 'immense proportions,' something had occurred which led the whole body of the people to suppose that remedies such as are usually employed to prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because is excess of the legislative power of the State. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge.

Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long-known and well-established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress. There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner.

It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. What they did was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor of a hackney-carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had purchased his horses and carriage and established his business before the statute or the ordinance was adopted.

It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question.

As has already been shown, the practice has been otherwise. In countries where the common law prevails, it has been customary from time immemorial for the legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. But this is because the legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use.

But a mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public employment, or for the use of property in which the public has an interest, is only changing a regulation which existed before. It establishes no new principle in the law, but only gives a new effect to an old one.

We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts.

After what has already been said, it is unnecessary to refer at length to the effect of the other provision of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]] which is relied upon, viz., that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' Certainly, it cannot be claimed that this prevents the State from regulating the fares of hackmen or the charges of draymen in Chicago, unless it does the same thing in every other place within its jurisdiction. But, as has been seen, the power to regulate the business of warehouses depends upon the same principle as the power to regulate hackmen and draymen, and what cannot be done in the one case in this particular cannot be done in the other.

We come now to consider the effect upon this statute of the power of Congress to regulate commerce.

It was very properly said in the case of the State Tax on Railway Gross Receipts, 15 Wall. 293, that 'it is not every thing that affects commerce that amounts to a regulation of it, within the meaning of the Constitution.' The warehouses of these plaintiffs in error are situated and their business carried on exclusively within the limits of the State of Illinois. They are used as instruments by those engaged in State as well as those engaged in inter-state commerce, but they are no more necessarily a part of commerce itself than the dray or the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they may become connected with inter-state commerce, but not necessarily so. Their regulation is a thing of domestic concern, and, certainly, until Congress acts in reference to their inter-state relations, the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress in respect to inter-state commerce, but we do say that, upon the facts as they are represented to us in this record, that has not been done.

The remaining objection, to wit, that the statute in its present form is repugnant to sect. 9, art. 1, of the Constitution of the United States, because it gives preference to the ports of one State over those of another, may be disposed of by the single remark that this provision operates only as a limitation of the powers of Congress, and in no respect affects the States in the regulation of their domestic affairs.

We conclude, therefore, that the statute in question is not repugnant to the Constitution of the United States, and that there is no error in the judgment. In passing upon this case we have not been unmindful of the vast importance of the questions involved. This and cases of a kindred character were argued before us more than a year ago by most eminent counsel, and in a manner worthy of their well-earned reputations. We have kept the cases long under advisement, in order that their decision might be the result of our mature deliverations.

Judgment affirmed.

title: Munn v. Illinois/Opinion of the Court


text: Talk:Munn v. Illinois/Opinion of the Court