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went hand in hand with attempts to regulate apparel, and the ways of living, by statute.

II. Combinations to raise the prices of merchandise, from the earliest times, were on the same legal footing with combinations to raise the prices of labor.

III. Attempts to raise prices by single individuals were on the same legal footing, as to their criminality, with like attempts by individuals in combination.

IV. The right to sell his own property at his own price, whether that property be labor or merchandise, and whether that price be fixed by single individuals separately, or by individuals in combination, has at last been fully recognized by the English law.

V. There is no authentic record of any authoritative decision of any English Court, which holds that a combination merely to raise prices, of the labor or merchandise of the parties combining, ever constituted a crime independently of statute.

VI. The case Mogul Steamship Company v. McGregor necessarily holds that such a contract of combination, independently of any statute, though the courts might not enforce it, never constituted a crime, or a legal wrong.

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In the earlier stages of the growth of the English law no distinction was drawn, as to the right of the State to control the prices of merchandise and the manner of carrying on trades and professions, between employments that were private and employments that were public.

That distinction is a product of a later date. Its chief development, due to questions of our constitutional law, has been in this country.

That distinction is, however, now well established. It is also now well established as the fundamental law in this country, where legislatures are the creatures of constitutions, and where their powers have legal limitations, that the State has the lawful power to control prices, and methods, in employments and properties that are public, while it has no such power as to employments and properties that are private. As Chief Justice Waite declared in Munn v. People of Illinois, 4 Otto, 113, “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 legis. lature 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 court must deterrnine 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."

In early times the number and importance of these public employments were comparatively small. Innkeepers, common carriers, millers, wharfingers, and the owners of ferries, were nearly the only private persons who followed public employments. Among these, it is to be noted that common carriers, wharfingers, and the owners of ferries, constituted part of the existing system of public transportation-were, in a sense, a part of the existing system of public highways. Indeed, innkeepers almost fell within the same classification, and therefore fell within its reason. The inns were the stopping-places for all the king's subjects, in their ordinary use of the king's highways.

The right of state control of innkeepers was asserted in England from a very early date, in statutes which regulated both prices and labor, in employments and trades which it would now be conceded are private. The law, from a very early time, took from innkeepers the ordinary contractual freedom which the subject naturally enjoyed in matters of private trade and commerce. The innkeeper was required to admit to his inn all persons who applied peaceably to be admitted as guests. In case of refusal he was liable to indictment.(a) He was held liable as an insurer, for the goods of his guest. In modern times the right of state control of inns has continually been asserted, and is never questioned.

So, too, the right of the state to control common carriers, as to their charges, and the manner of performance of their duties, has for a long time been unquestioned under the English law. Common carriers, too, from a very early period were deprived of the ordinary contractual freedom of the subject. From an early time

(a) Rex v. Ivens, 7 C. & P. 213.

public control of common carriers was exercised by statute. The Act 3 William and Mary, Cap. XII., sect. 24, provided : “That the justices of the peace of every county and other place . . . shall have power or authority, and are hereby enjoined and required at their next respective quarter or general sessions after Easter Day, yearly, to assess and rate the prices of all land carriage of goods whatsoever, to be brought into any place or places within their respective limits and jurisdictions, by any common waggoner or carrier, and the rates and assessments so made to certify to the several mayors and other chief officers of each respective market town within the limits and jurisdictions of such justices of the peace, to be hung up in some publick place in every such market town, to which all persons may resort for their information, and that no such common waggoner or carrier shall take for carriage of such goods and merchandises above the rates and prices so set, upon pain to forfeit for every such offense the sum of five pounds, to be levied by distress and sale of his and their goods, by warrant of any two justices of the peace, where such waggoner or carrier shall reside, in manner aforesaid, to the use of the party grieved.” The Act 2 & 3 Will. IV., c. 120, regulated duties, licenses, number of passengers, luggage, etc., as regarded stage carriage. By the Act 2 & 3 Victoria, chap. 66, sect. 1, those duties were changed. The Railway and Canal Traffic Act, 1854, 17 & 18 Vict., C. 31, provided that “every railway company, canal company and railway and canal company shall, according to their respective powers, afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; and every railway company and canal company and railway and canal company having or working railways or canals, which form part of a continuous line of railway or canal or railway and canal communication, or which have the terminus, station or wharf of the one near the terminus, station or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public in that behalf.”

Section third provided, that any company or person complaining against any such companies or company of anything done, or of any omission made, in violation or contravention of the act, could apply in a summary way by motion or summons to the Court of Common Pleas, or to a judge thereof; that the Attorney-General could also apply to the court or a judge thereof, to hear and determine the matter of such complaint, and in the discretion of the court could direct and prosecute by engineers, barristers or other persons, all such inquiries as might be deemed necessary to enable the court or judge to form a just judgment on the matter of such complaint ; and if it appeared to the court or judge on such hearing, and on the report of such persons, that anything had been done or omission made in violation or contravention of the act, a writ of injunction could be issued restraining the company or companies from further continuing such violation or contravention, and enjoining obedience

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