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." Taking it, that the Munn case approved this statement and there is deduced the conclusion, that whatsoever has been the practice in our early history to consider callings to be affected with a public interest, this is at least persuasive, if not conclusive, interpretation of the common law applicable to our condition. 32 In a very early case (1825), decided in North Carolina, it appears that defendant was proceeded against by a common law indictment for selling unwholesome meat and his conviction was affirmed. The court said: "In 4 Black. 162, it is said that it is an offense against public health to sell unwholesome provisions. From this it might be inferred that unless the public were concerned in the act it was not a public offense; that it is a misdemeanor at common law to give to any person unwholesome food not fit for man to eat lucri causa, or from malice or deceit. It seems upon the whole that the public health, whether affected through the medium of unwholesome food, or poisoning the atmosphere or introducing infectious diseases is anxiously guarded by the common law. There ought to be judgment for the State." In a Massachusetts case3 it was held that it was not necessary under a statute 32 State v. Smith, 10 N. C. (3 Hawks) 578, 14 Am. Dec. 594. 33 Commonwealth v. Farren, 9 Allen 489. making the sale of adulterated milk a misdemeanor, to show that defendant knew the milk to be adulterated, the court saying: "It is of the greatest importance that the community shall be protected against the frauds now practised so extensively and skillfully in the adulteration of articles of diet by those who deal in them, and if the legislature deem it important that those who sell them shall be held absolutely liable, notwithstanding their ignorance of the adulteration, we can see nothing unreasonable in throwing this back upon them.' '34 And the legislature may fix a standard for milk as taken from cows, whether a foreign substance has been added to what has been drawn from a cow or not.35 The same peril is in the sale of adulterated milk-want of knowledge of adulteration not excusing-has been held as to the slaughter for sale of a calf less than four weeks old, as forbidden by a statute.36 And so as to the sale of oleomargarine.37 From the very earliest times in this country there have been statutory regulation of markets and the sale of food therein or intended to be sold therein. Thus there was a by-law of the District of Columbia passed in 1802,38 prohibiting buying food during market hours for the purpose of reselling in the market or elsewhere in the city. But 34 This case affirmed in Commonwealth v. Waite, 11 Allen 264, 87 Am. Dec. 711. 35 State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344; State v. Newton, 45 N. J. L. 463. 36 Commonwealth v. Raymond, 97 Mass. 567. 37 State v. Smith, 10 R. I. 258; Commonwealth v. Gray, 150 Mass. 327, 23 N. E. 47. 38 Botelor v. Washington, 2 Cranch C. C. 676, Fed. Cas. 1685. whether food be offered in a market as such or by dealers elsewhere its sale or keeping for sale is generally under statutory regulation and these statutes have been interpreted as following the common law." While in this country the power to establish and regulate markets seem well settled, yet there is a division of opinion as to whether the grant of such power, standing alone, carries with it the right to prohibit the sale of articles elsewhere. This question, however, remotely if at all relates to what we have in mind at this place. § 59. Grist and Sawmills of Public Interest.—From the very earliest days in America there have appeared statutes similar to much older English statutes for the upholding and regulating of mills. For example, as said in a Connecticut case,10 in answer to a contention that taking land for a millpond was not a public purpose: "Upon this point we can entertain no doubt. From the first settlement of the country, grist mills of this description have been in some sense peculiar institutions invested with a general interest. Towns have procured them to be established and maintained. The State has regulated their tolls. In many instances they have been not merely a convenience, but almost a necessity in the community." The United States Supreme Court"1 said: "The statute of Kansas upon the subject of grist mills is based upon the idea, and, indeed, upon the declaration that all grist mills are public institutions. Under 39 State v. Buckner, 8 N. H. 203, 29 Am. Dec. 646; State v. Snyder, 44 Mo. App. 429. 40 Olmstead v. Camp., 33 Conn. 532, 89 Am. Dec. 221. 41 Burlington v. Beasley, 94 U. S. 310, 24 L. Ed. 961. our recent decision in Munn v. Illinois, 94 U. S. 113, and the other cases upon kindred subjects, it would be competent to the legislature of Kansas to regulate the toll to be taken at these mills." There appears in a case decided by U. S. Supreme Court,12 a statement as follows: "General mill acts exist in a great majority of the States of the Union." Then follows a list of these states. It was said also that: "It has been generally admitted, even by those courts, which have entertained the most restricted view of the legislative power, that a grist mill which grinds for all comers at tolls fixed by law, is for public use." In a Maine case it was said: "It is conceded by all the authorities that common carriers, common ferries, common roads, common wharves, common telegraphs, common telephones, common grist mills and common lumber mills are of that public nature to be put under public control, whether operated under the authority of charters from the state or by individual enterprise." In this case it was held that a contract to pay a greater rate of toll than that fixed by the statute, being invalid presented no defense for violating the statute fixing the toll for a grist mill. It was also said in this case that: "Mills for the grinding of grain and for the sawing of lumber for all comers have been aided and established by the legislature from the earliest Colonial times. Those mills were usually water mills, but it is of no moment what the propelling power may be." Indeed the point was made in the Beasley case, supra, that the mill there considered was not "situated on 42 Head v. Amoskeag Mfg. Co., 113 U. S. 9, 16, 28 L. Ed. 891, 5 Sup. Ct. 441. 43 State v. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528. a watercourse or operated by water-power" and yet it was held to come under the principle in the Munn case. For cases referring to early statutes regarding the support and regulation of mills see note hereto.** Saw mills have not been greatly mentioned in decision, but it is said in a note to Stowell v. Flagg, that they like grist mills serve a public use. The principle considered in this section very lately has been applied to one ginning cotton for the public."a. It was said in this case, as showing public interest, that: "We live in a great agricultural state, and cotton has long been recognized as our chief staple, considered as the foundation of the wealth and prosperity of the agricultural sections of the state. Its preparation for market is therefore of the utmost concern to the public." $60. Insurance Affected With Public Interest.There is to be found no direct precedent in our common law for affirming that the business of insurance, whether of life, fire, accident or otherwise, is affected with a public interest so as to authorize the state to control it by regulation of rates, though under police power, by way of public policy, legislation might affect it. Thus as showing why insurance is the subject of a state's police power it has been said:15 "The business of insurance is the outgrowth of time and the demands and necessities of the public. It extends into and covers almost every branch of business and all the relations of life, and is applied to all the 4 Stowell v. Flagg, 11 Mass. 363; Newcomb v. Smith, 1 Chand. (Wis.) 71; Kent and Radcliff's Laws 49. 44a Tallassee Oil & Fertilizer Co. v. Holloway, Ala. 76 So. 434. 45 North Am. Ins. Co. v. Yates, 214 Ill. 272, 73 N. E. 423. |