STATE v. EDWARDS.

SUPREME COURT OF MAINE, 1893.

[86 Me. 102.]

HASKELL, J. The defendants were convicted under R. S., c. 57, §§ 5 and 6, as amended by the Act of 1885, c. 332, on two several counts; first, of refusing to receive grain at their grist-mill there tendered to be ground; second, of taking excessive toll. The defendants have exception to the ruling of the court that they were bound to receive the grists of grain offered, and grind the same for the toll specified by the statute, and that an agreement for toll in excess of that fixed by statute would be no defence.

The case does not show what kind of a mill the defendants operated, nor whether it was a public or private mill, nor whether it was a watermill, steam-mill or wind-mill. It assumes, however, that it was a gristmill, used for grinding grain for the public.

Exceptions must show sufficient facts to make the ruling erroneous. Reed v. Reed, 70 Maine, 504. In this case, therefore, if the ruling excepted to be correct, and the statute under which the conviction was had be constitutional when applied to any kind of a grist-mill, judgment must be entered on the verdict. And it may be assumed that defendants' mill was a public grist-mill, propelled by a head of water obtained under authority of the mill act, R. S., c. 92.

Assuming the mill to be a public mill, and the statute under which the conviction was had to be valid, an agreement between the owner of the grain and the defendants, for toll in excess of the statute quantity, can be no defence. The act of the defendants in taking excessive toll was just as much in defiance and violation of the statute, when taken by agreement with the owner of the grist, as if taken without his consent. The defendants' act is prohibited by the statute. They were required to run their public mill for statute toll, with equal dispatch for all the patrons of their mill. They were required to receive grists and grind them in their turn, without motive for unequal dispatch to those willing to pay an extra price for it. The taking of usury by agreement with the borrower of money is analogous. Freedom from blame on the part of the lender is not a bar to the borrower's right to recover back the usury. Houghton v. Stowell, 28 Maine, 215. The statute under which the conviction was had imposes no such condition.

But it is stoutly asserted that the statute is unconstitutional as an invasion of the private right of enjoyment of property. The mill act of Maine applies to all water-mills; and whether its validity results from the exercise of eminent domain, as supposed by many cases, Jordan v. Woodard, 40 Maine, 317; Great Falls Mfg. Co. v. Fernald, 47 N. H.

444; Olmstead v. Camp, 33 Conn. 532, and others cited by Gould on Waters, § 253, and by the Supreme Court in Head v. Amoskeag Mfg. Co., 113 U. S. 9, or from the proper regulation of the rights of riparian owners, so as to best serve the public welfare, having due regard to the interests of all, as held in Head v. the Amoskeag Mfg. Co. supra, and in Murdock v. Stickney, 8 Cush. 114, and remarked by the Court in Lowell v. Boston, 111 Mass. 466, it is unnecessary now to consider.

It is conceded by all authorities that the public use of property by the individual is within the scope of legislative control. And it matters not whether the use be authorized by express statute or dedicated by the individual proprietor. If it be a public use, it is within the supervision and control of the legislature. The troublesome question is, whether the use be public. Tyler v. Beacher, 44 Vt. 648. In most branches of business the public has an interest. That interest varies according to the surrounding conditions of the particular business in question. If it be a monopoly, the interest of the public to be fairly and conveniently served is much greater than when the monopoly ends by force of wholesome competition. A distinction must be made between a public use and a use in which the public has an interest. In the former case, the public may control, because it is a use within the function of government to establish and maintain. In the latter case, it is a private enterprise that serves the public and in which it is interested to the extent of its necessities and convenience. The former is clearly within the control of the legislature, while the latter may not be. Many authorities, however, go to that extent. Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517, and cases cited. The public is interested to be well and reasonably served at the store of the tradesman, the shop of the mechanic and the office of the professional man, and yet, all these vocations are private. The goods on sale in the store, material furnished by the mechanic, and the skill employed by the professional man are the individual property of each one respectively. Their vocations are exercised for their own gain, and they have a right to the fruits of their own industry without legislative control. It must not be understood that each one may not be properly subjected to suitable police regulations as to the manner of his business; 2 Kent, 340; but the business cannot be thereby controlled and the profits to be gained therefrom destroyed, taken away or limited by the establishment of prices; otherwise we should have a paternal government that might crush out all individual liberty, and the declaration of our constitution would become as valueless as stubble.

It is conceded by all authorities that common carriers, common ferries, common roads, common wharves, common telegraphs and common telephones, etc., and 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. Each of those cases is within the function of

government to establish and maintain, and, therefore, to control, by whomsoever exercised. Blair v. Cuming County, 111 U. S. 363; Head v. Amoskeag Mfg. Co., 113 U. S. 9; Stone v. Farmer's Loan and Trust Co., 116 U. S. 307; Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418.

Mills for the grinding of grain and for the sawing of lumber for all comers have been aided or 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. Burlington v. Beasley, 94 U. S. 310. They have always been considered so necessary for the existence of the community that it was proper for government to foster or maintain them; and in the absence of government aid, the individual proprietor, not pretending to serve the public, might maintain such mills as private mills, free from legislative interference, precisely as he might maintain a store, shop, or other private business; but when such proprietor makes his mill public, assumes to serve the public, then he dedicates his mill to public use and it becomes a public mill, subject to public regulation and control. He is not compelled to continue such public use, but so long as he does, he becomes a public servant and may be regulated by the public.

In the present case, the mill must be considered a public mill and rightfully within legislative control. No suggestion is made that the statute regulation is unreasonable, and therefore it is unimportant to consider whether the reasonableness of the statute regulation be a legislative or judicial function. Exceptions overruled.

SAMMONS v. KEARNEY POWER & IRRIGATION COMPANY.

SUPREME COURT OF NEBRASKA, 1906.

[110 N. W. 308.1]

THIS brings us to the intervener's cross-appeal. Its contract for the use of water contains this clause: "The party of the first part further agrees not to sell water for power to any person or corporation, intending to compete with the party of the second part (intervener) in the generation of electricity for sale." The trial court held the foregoing clause to be contrary to public policy and void, and the intervener contends that the decree to that extent is erroneous. In support of this contention many cases are cited wherein exclusive franchises to operate ferries, to construct bridges, or to supply cities with water or gas for a limited time have been upheld. See New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516; New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, 29 L. Ed. 525; Louisville Gas Co. v. Citizens' Gas. Co., 115 U. S. 683, 6 Sup. Ct. 265, 29 L. Ed. 510; Citizens' Water Co. v. Bridgeport Hydraulic Co., 55 Conn. 1, 10 Atl. 170; Des Moines Street R.R. Co. v. Des Moines Broad Gauge Street Ry. Co., 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602; Davenport Electric Light Co. v. City of Davenport, 124 Iowa, 22, 98 N. W. 892; Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 17 L. Ed. 571; The Binghamton Bridge, 3 Wall. 51, 18 L. Ed. 137. The distinction between these cases and the case at bar is obvious. A municipal corporation is an instrumentality of the state for the better administration of government in matters of local concern. United States v. New Orleans, 98 U. S. 381, 20 L. Ed. 434. The main purpose of its creation is the exercise of certain governmental functions within a defined area. While it has the power to make contracts and transact other business not strictly governmental in character, such powers are incidental or auxiliary to its main purpose. In none of the cases cited was there any attempt on the part of a municipality to restrict its governmental functions, or to place itself in a position where it would be incapable of carrying out the purpose for which it was created.

In the case at bar we are dealing with an irrigation company · -a quasi public corporation. It is also a governmental agency, but its main purpose is the administration of a public utility. To the extent of its capacity it is bound to furnish water from its canal to persons desiring to use it on equal terms and without discrimination. In this

1 Only that part of the case which relates to the intervener's appeal is printed. - ED.

respect it stands on the same footing as a railroad company. Neither has the right nor the power to place itself in a position where it cannot serve every person on equal terms with every other person. Neither has the right nor power to bind itself by a contract which, if enforced, would render it unable to serve the public on those terms or to carry out its main purpose. In State v. Hartford, etc., R.R. Co., 29 Conn. 538, where a railroad company had placed itself in such position, ELLSWORTH, J., pertinently asks: "What right had it to covenant it would not run its cars to tidewater, as its charter prescribes and the public accommodation requires ?" And with equal force it may be asked in this case: What right had the irrigation company, bound by the very nature of its organization to furnish water to the public without discrimination, to bind itself by the clause in question, which would prevent it performing such services? In Chicago Gaslight Co. v. People's Gaslight Co., 121 Ill. 530, 13 N. E. 169, 1 Am. St. Rep. 124, one of the propositions of law laid down is that a corporation, owing a duty to the public, cannot make a valid contract not to discharge such duty. From this proposition it would necessarily follow that, where a corporation owes a duty to the public generally, it cannot bind itself by contract to serve one person to the exclusion of all others.

In West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. 527, a landowner had granted to an oil transportation company the exclusive right of way and privilege of laying and maintaining pipes for transporting oil through a tract of 2,000 acres, and the contract was held invalid, as an unreasonable restraint of trade and contrary to public policy. In that case a large number of authorities are reviewed, among which are many wherein contracts in restraint of trade have been upheld, and others, again, where they have been held void as against public policy. The court there holds that the test is whether the restraint is prejudicial to the public interest, and then uses this language: "From the principles which underlie all the cases the inference must be necessarily drawn that, if there be any sort of business which from its peculiar character can be restrained to no extent whatever without prejudice to the public interest, then the courts would be compelled to hold void any contract imposing any restraint, however partial, on this peculiar business, provided, of course, it be shown clearly that the peculiar business thus attempted to be restrained is of such a character that any restraint upon it, however partial, must be regarded by the court as prejudicial to the public interest. Are there any sorts of business of this peculiar character? It seems to me that there are, and that they have been recognized as possessing this peculiar character, both by the statute law and by the decisions of the court. Are not railroading and telegraphing forms of business which. are now universally recognized as possessing this peculiar character?" The principle involved in the case at bar does not, as it appears to us, differ from that involved in the case from which we have just quoted. The business of the irrigation company is of the peculiar character