Contra Maj.

judges

ment of their property, embraces an almost infinite variety of subjects. Whatever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes. What is termed the police power of the state, which, from the language often used respecting it, one would suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals in their intercourse with each other, and in the use of their property, so far as may be required to secure these objects. The compensation which the owners of property, not having any special rights or privileges from the government in connection with it, may demand for its use, or for their own services in union with it, forms no element of consideration in prescribing regulations for that purpose. If one construct a building in a city, the State, or the municipality exercising a delegated power from the State, may require its walls to be of sufficient thickness for the uses intended; it may forbid the employment of inflammable materials in its construction, so as not to endanger the safety of his neighbors; if designed as a theatre, church, or public hall, it may prescribe ample means of egress, so as to afford facility for escape in case of accident; it may forbid the storage in it of powder, nitro-glycerine, or other explosive material; it may require its occupants daily to remove decayed vegetable and animal matter, which would otherwise accumulate and engender disease; it may exclude from it all occupations and business calculated to disturb the neighborhood or infect the air. Indeed, there is no end of regulations with respect to the use of property which may not be legitimately prescribed, having for their object the peace, good order, safety, and health of the community, thus securing to all the equal enjoyment of their property; but in establishing these regulations it is evident that compensation to the owner for the use of his property, or for his services in union with it, is not a matter of any importance: whether it be one sum or another does not affect the regulation, either in respect to its utility or mode of enforcement. One may go, in like manner, through the whole round of regulations authorized by legislation, State or municipal, under what is termed the police power, and in no instance will he find that the compensation of the owner for the use of his property has any influence in establishing them. It is only where some right or privilege is conferred by the government or municipality upon the owner, which he can use in connection with his property, or by is compelled to resort, and by means of which a tribute can be exacted from the community, it is subject to regulation by the legislative power." Sinking Fund Cases (1878), 99 U. S. 700, 745.

means of which the use of his property is rendered more valuable to him, or he thereby enjoys an advantage over others, that the compensation to be received by him becomes a legitimate matter of regulation. Submission to the regulation of compensation in such cases is an implied condition of the grant, and the State, in exercising its power of prescribing the compensation only determines the conditions upon which its concession shall be enjoyed. When the privilege ends, the power of regulation ceases. . . .

MR. JUSTICE STRONG. When the judgment in this case was announced by direction of a majority of the court, it was well known by all my brethren that I did not concur in it. It had been my intention to prepare a dissenting opinion, but I found no time for the preparation, and I was reluctant to dissent in such a case without stating my reasons. MR. JUSTICE FIELD has now stated

them as fully as I can, and I concur in what he has said."

PEOPLE v. BUDD.

117 N. Y. 1. 1889.1

ANDREWS, J. The main question upon this record is, whether the legislation fixing the maximum charge for elevating grain, contained in the act, chapter 581 of the Laws of 1888, is valid and constitutional. The act, in its first section, fixes the maximum charge for receiving, weighing and discharging grain by means of floating and stationary elevators and warehouses in this state, at five-eighths of one cent a bushel, and for trimming and shoveling to the leg of the elevator in the process of handling grain by means of elevators, "lake vessels or propellers, the ocean vessels or steamships, and canal boats," shall, the section declares, only be required to pay the actual cost. The second section makes a violation of the act a misdemeanor, punishable by a fine of not less than $250. The third section gives a civil remedy to a party injured by a violation of the act. The fourth section excludes from the operation of the act any village, town, or city having less than one hundred and thirty thousand population. The defendant, the manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh Valley Transportation Company for elevating, raising and discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and

Two judges also dissented when this case was before the Supreme Court of Illinois. Munn v. People (1873), 69 Ill. 80.

1 The arguments of counsel, and parts of the opinion of ANDREWS, J., are omitted, as well as the dissenting opinions of GRAY and PECKHAM, JJ.

for shoveling to the leg of the elevator, the carrier was charged and compelled to pay four dollars for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed pursuant to an arrangement made since the passage of the act of 1888, by a body of men known as the Shovelers' Union, who pay the elevator one dollar and seventy-five cents a thousand bushels, for the use of the steam shovel, a part of the machinery connected with the elevator, operated by steam, and who for their services and the expense of the steam-shovel charge the carrier for each thousand bushels of grain shoveled the sum of four dollars. The defendant was indicted for a violation of the act of 1888. The indictment contains a single count charging a violation of the first section in two particulars, viz.: In exacting more than the legal rate for elevating the cargo, and exacting more than the actual cost for shovelling the grain to the leg of the elevator. Before reaching the main question there is a subordinate question to be considered.

Passing this point, we come to the main question, whether legislative power under the State Constitution exists in the legislature to prescribe a maximum charge for elevating grain by stationary elevators owned by individuals or corporations, who have appropriated their property to this use and are engaged in this business. The ascertainment of the exact boundaries of legislative power under the rigid constitutional system of the American states is in many cases attended with great perplexity and difficulty. The People have placed in the Constitution a variety of restrictions on legislative power, and chief among them is that which ordains. that no person shall be deprived of life, liberty or property without due process of law. . . . The protection of private property is one of the main purposes of government, but no one holds his property by such an absolute tenure as to be freed from the power of the legislature to impose restraints and burdens required by the public good, or proper and necessary to secure the equal rights of all. This power of government, the power as expressed by TANEY, C. J. (5 How. 583), "inherent in every sovereignty, the power to govern men and things," is not, however, an uncontrollable or despotic authority, subject to no limitation, exercisable with or without reason in the discretion or at the whim or caprice of the legislative body. But within its legitimate domain the power is original, absolute and indefeasible. It vested in the legislative department of the government at its creation, without affirmative grant or definition, as an essential political power and attribute of government, and personal rights and rights of property are sub

ordinate to this supreme power acting within its appropriate sphere. It may be exercised so as to impair the value of property or limit or restrict the uses of property, yet in this there is no infringement of the constitutional guaranty, because that guaranty is not to be construed as liberating persons or property from the just control of the laws. It was designed for the protection of personal and private rights against incroachments by the legislative body not sanctioned by the principles of civil liberty as held and understood when the Constitution was adopted. The boundary of legislative power in the enactment of laws in the assumed exercise of this power of sovereignty, which injuriously affects persons or property, is indistinct, and no rule or definition can be formulated under which, in all cases, it can be readily determined whether a statute does or does not transgress the fundamental law. The power of the British parliament is not the test of legislative power under the written Constitution of the American States. But the great landmarks of civil liberty, embodied in our State Constitutions, were established by our English ancestors, and upon questions such as the one now before us we may study with profit the principles and practice of the law of England. When a statute is challenged as overstepping the boundaries of legislative power, the object sought to be obtained by the legislature, the nature and functions of government, the principles of the common law, the practice of legislation and legal adjudications are pertinent and important considerations and elements in the determination of the controversy.

The act in question regulates the price of elevating grain, and the regulation affects the compensation which may be lawfully demanded for labor and personal services, as well as for the use of property. It fixes a maximum charge for labor and the use of property when combined, as they of necessity are, in the business of elevating grain. The operation of the statute is by its terms limited to the business carried on in cities and towns having a population of not less than one hundred and thirty thousand, practically to the cities of Buffalo, New York and Brooklyn. The circumstances, also, substantially restrict the application of the act to grain brought to Buffalo from the upper lakes by water, and there, by means of elevators, transshipped into canal boats and transported through the Erie canal and Hudson river to the harbor of New York and there discharged by elevators into warehouses or ocean vessels. The business of transporting grain by the lakes, and thence by the Erie canal to New York, is one of great magnitude. The case shows that about one hundred and twenty millions of bushels of grain annually come to Buffalo from the west.

The business of elevating grain at that point is mainly con-
nected with lake and canal transportation. It is shown by official
records that the receipts of grain at New York in the year 1887,
by way of the Erie canal and Hudson river, during the season of
canal navigation, exceeded forty-six million bushels, an amount
very largely in excess of the amount received during the same
period by rail and by river and coastwise vessels. The elevation
of this grain from lake vessels to canal boats takes place at Buffalo,
where the case shows there are thirty or forty elevators, stationary
and floating. How many of these elevators are actually employed
in the business does not appear. The record is silent as to many
facts which might tend to explain the relation of this business
as actually conducted, to the public interests. It is asserted that
a combination exists, and has for several years existed, between
the elevator owners to maintain excessive charges, by fixing a
uniform tariff and pooling the earnings, and dividing them ratably
among all of the elevator owners, although but a part of the
elevators are actually operated. . . There is no evidence in the
record as to the locations in the port of Buffalo suitable and
available for stationary elevators. It is evident that they must be
placed where they can be reached by both lake vessels and canal
boats, and it may reasonably be assumed that but a limited area
(not devoted to other purposes of commerce) is available for the
erection of stationary elevators..

In determining whether the legislature can lawfully regulate
and fix the charge for elevating grain by private elevators, it must
be conceded that the uses to which a man may devote his property,
the price which he may charge for such use, how much he shall
demand or receive for his labor, and the methods of conducting
his business are, as a general rule, not the subject of legislative
regulation. These are a part of our liberty, of which, under the
constitutional guaranty, we cannot be deprived. We have no hesi-
tation in declaring that unless there are special conditions and
circumstances which bring the business of elevating grain within
principles which, by the common law and the practice of free
governments, justify legislative control and regulation in the par-
ticular case, the statute of 1888 cannot be sustained. That no
general power resides in the legislature to regulate private business,
prescribe the conditions under which it shall be conducted, fix the
price of commodities or services, or interfere with freedom of
contract, we cannot doubt.2 The merchant and manufacturer, the
artisan and laborer, under our system of government, are left to

2 See Holter Hardware Co. v. Boyle (1920), 263 Fed. 134, appeal dismissed (1922), 257 U. S. 666, holding unconstitutional a Montana statute which gave to a trade commission the power to determine prices and profits in all businesses.