domain, or money demanded by the tax collector. The establishment of a business like the buying and selling of fuel requires the expenditure of money. If this is done by an agency of the government there is no way to obtain the money except by taxation. Money cannot be raised by taxation except for a public use.

Until within a few years it generally has been conceded, not only that it would not be a public use of money for the government to expend it in the establishment of stores and shops for the purpose of carrying on a business of manufacturing or selling goods in competition with individuals, but also that it would be a perversion of the function of government for the State to enter as a competitor into the field of industrial enterprise, with a view either to the profit that could be made through the income to be derived from the business, or to the indirect gain that might result to purchasers if prices were reduced by governmental competition. There may be some now who believe it would be well if business was conducted by the people collectively, living as a community, and represented by the government in the management of ordinary industrial affairs. But nobody contends that such a system is possible under our Constitution. It is plain, however, that taxation of the people to establish a city or town in the proprietorship of an ordinary mercantile or manufacturing business would be a long step towards it. If men of property, owning coal and wood yards, should be compelled to pay taxes for the establishment of a rival coal yard by a city or town, to furnish fuel at cost, they would thus be forced to make contributions of money for their own impoverishment; for if the coal yard of the city or town was conducted economically, they would be driven out of business. A similar result would follow if the business of furnishing provisions and clothing, and other necessaries of life, were taken up by the government; and men who now earn a livelihood as proprietors would be forced to work as employees in stores and shops conducted by the public authorities.

Except for the severely onerous conditions from which we are now suffering, the causes of which arose outside of this State beyond the reach of our legislative enactments, there is nothing materially different between the proposed establishment of a governmental agency for the sale of fuel, and the establishment of a like agency for the sale of other articles of daily use. The business of selling fuel can be conducted easily by individuals in competition. It does not require the exercise of any governmental function, as does the distribution of water, gas, and electricity, which involves the use of the public streets and the exercise of the right of eminent domain. It is not important that it should be conducted as a single large enterprise with supplies emanating from a single source, as is required for the economical management of the kinds of business last mentioned. It does not even call for the investment of a large capital, but it can be conducted profitably by a single individual of ordinary means.

RATCLIFF v. WICHITA UNION STOCKYARDS COMPANY. SUPREME COURT OF KANSAS, 1906.

[86 Pac. 150.1]

ACTION by J. W. Ratcliff to recover charges on live stock beyond the statutory rate on cattle placed in and marketed at the Wichita Union Stockyards.

JOHNSTON, C. J. The operation of stockyards has more of the characteristics of a public business than the carrying on of an elevator or a warehouse. It possesses the market features, including considerations of sanitation and health, and it also has more of the monopolistic feature. The stockyards in question are situated in a commercial center and constitute the public live stock market for a great region, largely devoted to live stock business. The principal railroads of the Southwest country enter Wichita, and their tracks all unite in the stockyards, and the business is therefore intimately related to the business of transportation. Here the stock raisers and shippers meet and deal with the packers and purchasers, and here live stock in transit from Oklahoma, Texas, and Colorado to more distant markets are unloaded for rest, feeding, and care. No other market exists nearer than Kansas City on the east, which is about 260 miles away, and the nearest ones on the west are Denver and Peublo, about 500 miles away. Because of the nature of the business and the railroad facilities the establishment of other markets at or near Wichita is impracticable, and hence these stockyards are, and of necessity will be, the only available place where the breeders, feeders, and dealers of a great scope of country can conveniently market their live stock. The company has, therefore, a practical monopoly of a vast business affecting thousands of people who are almost obliged to deal at that market and at the rates which the company may choose to charge. To the company is committed the feeding, watering, and weighing of cattle sent from great distances, whether accompanied by the owner or not, and this is an additional reason for regulation and control. In Cotting v. Kansas City Stockyards Company (C. C.), 82 Fed. 850, it was held that "a stockyard business located in a large city at the junction of many railroad lines, which furnishes the only proper facilities for the unloading, resting, and feeding of live stock in transit and for the sale of cattle in said city, is affected with a public use so as to be subject to legislative control, and the proper legislative body may prescribe a maximum rate of compensation for the care and handling of stock thereat." This case was taken to the Supreme Court of the United States, where it was reversed because of a discriminatory provision of the statute under consideration. In determining that question, however, Justice BREWER, who rendered the decision, in commenting on the nature of the business of stockyards and the interest of the public in it, 1 Only one extract iɛ printed.—ED.

took occasion to say: "Tested by the rule laid down in Munn v. Illinois, it may be conceded that the state has the power to make reasonable regulation of the charges for services rendered by the stockyards company. Its stockyards are situated in one of the gateways of the west, and so located that they furnish important facilities to all seeking transportation of cattle. While not a common carrier, nor engaged in any distinctively public employment, it is doing a work in which the public has an interest, and therefore must be considered as subject to governmental regulation." Cotting v. Kansas City Stockyards, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92. In Delaware, etc., Railroad Company v. Central Stockyards Company, 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855, the court discussed the nature of the business, and held that the business of maintaining stockyards corresponds with that of warehousemen, and therefore is subject to the same general principles of law. It was held, however, that in the absence of a statute a court of chancery could not impose regulations upon those engaged in the business without usurping legislative power. In Stock Exchange v. Board of Trade, 127 Ill. 153, 19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107, it was held that the market quotations and reports of the board of trade of Chicago had become affected with a public interest, and so long as it continued in business it must furnish reports and quotations to all who may desire them for lawful purposes, and upon the same terms. In a later case before the same court it was held that the Chicago Live Stock Exchange could not be treated as a public market in the ordinary sense, but in the course of the decision it was said that the character and magnitude of its business was such as "to warrant the Legislature in the exercise of its legislative discretion in declaring a public use, and placing said business under local control and supervision, but such power, in our opinion, does not rest with the courts." American Live Stock Commission Company v. Chicago Live Stock Exchange, 143 Ill. 210, 32 N. E. 274, 18 L. R. A. 190, 36 Am. St. Rep. 385. See, also, Head v. Amoskeag Manufacturing Company, 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889; State v. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528, Nash v. Page, 80 Ky. 539, 44 Am. Rep. 490; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128; Baker v. State, 54 Wis. 368, 12 N. W. 12; Breechbill v. Randall, 102 Ind. 528, 1 N. E. 362, 52 Am. Rep. 695; State ex rel. v. Gas Co., 34 Ohio St. 572, 32 Am. Rep. 390; Freund on Police Power, § 373; Cooley's Constitutional Limitations, 870; 1 Tiedeman on State and Federal Control, § 95. We conclude that the stockyards business as conducted in Wichita is clothed with a public interest, and that the state in the exercise of its police power may, within constitutional limitations, subject it to regulation and control.1

1 See also Cotting v. Kansas City Stockyards Co., 183 U. S. 79. But see Delaware & W. Ry. Co. v. Central Stockyards Co., 46 N. J. L. 280.- ED.

STATE v. JACKSONVILLE TERMINAL CO.

SUPREME COURT OF FLORIDA, 1900.

[41 Fla. 377.1]

XI. Ninth and eleventh grounds of the motion to quash: The regulation made by the commissioners, under the power conferred upon them, in this case is in no sense an "appropriation" of any private property or right of way within the meaning of section 29, Art. XVI of the constitution, so as to require the compensation therefor to be ascertained by a jury of twelve men. The defendant in error, as we have seen, had devoted its property to a use essentially public, is performing services of a public nature, and is subject to be controlled by the public for public welfare. That use to which it has voluntarily devoted its property is to furnish passenger terminal facilities to railroad common carriers. It is discriminating among the railroads that it will serve, and the commissioners under power granted them by the legislature have determined that such discrimination as against a particular railroad is unjust and contrary to the best interest and convenience of the public. It has, therefore, made a regulation that this railroad be admitted to the facilities which the defendant in error is furnishing other railroad common carriers upon payment of reasonable compensation. It is no more an appropriation of the property of the terminal company than is the law which requires common carriers to transport all persons at a reasonable rate of compensation, or the law which requires an inn-keeper to furnish accommodations to all who apply, and at reasonable rates if fixed by the legislature. While it would seem that one was as much an appropriation of property as another, it surely will not be contended that a passenger or a traveller must condemn his way into a railroad passenger car or hotel in order to secure the transportation of the lodging to which he is by the law entitled. There is a very clear distinction between a taking or an appropriation of property for a public use and regulating the use of property devoted to a use in which the public has an interest. The latter is an exercise of the police power, as it is called; the former of the power of eminent domain. The State in the former case compels the dedication of the property or some interest therein to a public use, or, if already dedicated to one public use, then to another. In the latter, the owner has voluntarily or in pursuance of the provisions of its charter, dedicated the property to a use in which the public has an interest, and the use of that property so dedicated is merely regulated and controlled for the public welfare. In this case the regulation complained of does not compel the defendant in error to dedicate its prop

1 Only one point is printed. - ED.

erty to the public use, or to a different public use. It has already voluntarily and presumably in pursuance of its charter powers devoted its property to a public use by undertaking to furnish for railroad common carriers and the public served by them terminal facilities to aid and enable these public agencies to perform their obligations to the public and to assist them in such performance. The State regulates this use of the property by requiring that the charges for such uses and privileges shall be reasonable, and by requiring the terminal company in performing the services and conducting the business which it has so voluntarily assumed, to perform such services and conduct such business impartially and without discrimination wherever the public interests require them to be so performed and conducted. The regulation complained of does not appropriate property; it merely prevents abuses, prohibits unjust discrimination and excessive charges, and is, therefore, valid. Of course if the regulation sought to be enforced is valid, its enforcement by mandamus cannot be construed as a taking or appropriation of property under the power of eminent domain, or as a deprivation of property without due process of law.

TRANSPORTATION CO. v. STANDARD OIL CO.

COURT OF APPEALS, WEST VIRGINIA, 1901.

[40 S. E. Rep. 591.2]

BRANNON, J. The West Virginia Transportation Company brought trespass on the case in Wood County against the Standard Oil Company and the Eureka Pipe Line Company, all corporations, and upon demurrer to the declaration judgment was rendered for the defendants. The first count of the declaration charges that the plaintiff was engaged in the business of transporting petroleum oils by means of pipe lines and tank cars from Volcano and vicinity to Parkersburg, and in storing oil, and had expended $300,000 in acquiring land, rights of way, lines of tubing, and other things necessary in its business, and had built up a large and lucrative business, and that the defendants maliciously and wickedly contriving and intending to injure the plaintiff and ruin its business, and render its plant and property worthless, and deprive it of all its