other, except by leave of the court upon cause shown.

[No. 411.]

ed States for the District of Iowa.

On motion.

The case, as presented by this motion, is fully stated by the court. For the report of the case on its merits, see post.

Mr. Thomas F. Withrow, for appellees. Messrs. C. M. Da Costa, J. E. Burrill, James Grant and Smith, for appellants.

Mr. Chief Justice Waite delivered the opin

ion of the court:

Stipulations between counsel relative to the course of proceeding in a cause pending in this court cannot be withdrawn by one party without the consent of the other, except by leave of the court upon cause shown. The counsel in this case stipulated in writing, on or before July 5, 1876, to submit the cause on printed arguments, under Rule 20, during the first ninety days of this Term. This stipulation was filed here July 5; but, October 21, the counsel for the appellants notified the counsel for the appellees that he withdrew his agreement.

The counsel for the appellees having filed a printed argument within the ninety days, now asks that the cause be taken up and considered by the court as submitted under the rule.

This we might with propriety do, as, if the desired withdrawal is not assented to, applica cation for the vacation of the stipulation ought to be made here in time to have it disposed of before the expiration of the ninety days. But as we have never before been called upon to settle the practice applicable to this class of cases, it is now ordered that the appellants cause a printed argument to be filed in their behalf on or before March 6, next, or show good cause why the stipulation for submission made by their counsel should not be enforced against them; and, in default, that the cause be taken up and considered as submitted under the rule, without argument by the appellants.

Cited 101 U. S., 793.

IRA Y. MUNN ET AL., Piffs. in Err.,

v.

[No. 99.]

This case arose upon an information filed in the Criminal Court of Cook Co., Ill., against the plaintiffs in error, for transacting business as public warehousemen without a license. The defendants admitted the facts charged, but alleged that the statute, requiring said license, was unconstitutional for attempting to fix the maximum rates of storage.

The only question involved was the constitutionality of the statute in that respect. Judg. ment having been given against said defendants and affirmed upon writ of error by the Supreme Court of the State, they sued out this writ of

error.

Messrs. W. C. Goudy and John N. Jewett, for plaintiffs in error:

The statute is repugnant to the provisions of the Federal Constitution which confers upon Congress the power to regulate commerce with foreign nations and among the several States. The business of the plaintiffs in error is covered by the word " commerce."

In the case of the State Freight Tax, 15 Wall., 275 (82 U. S., XXI., 161), it is said; "A power to prevent embarrassing restrictions by any State was the thing desired. The power was given by the same words, and in the same clause, by which was conferred power to regulate commerce with foreign nations."

The Act of the Illinois Legislature is a regulation of commerce.

The power asserted by the Legislature of Illinois is one of restraint, as well as of regulation.

It is said in Gibbons v. Ogden, 9 Wheat., 232; "Licensing Acts, in fact, in legislation, are universally restraining Acts."

In Brown v. Md., 12 Wheat., 448, the court says: "Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate commerce, since an essential part of that regulation, and principal object of it is to prescribe regular means for accomplishing that introduction and incorporation."

This court said, in Osborne v. Mobile, 16 Wall., 481 (83 U. S., XXI., 472), that interstate commerce was, by the Constitution, designed to be

NOIS.

(See S. C., "Munn v. Illinois", 4 Otto, 113-154.)

State law regulating storage of grain-warehouses

-regulation of trade.

1. Under the limitations upon the legislative power of the States imposed by the Constitution of the United States, the Legislature of Illinois can fix by law the maximum of charges for the storage of grain in warehouses, at Chicago and other places in the State.

State Freight Tax Case, was held to be unconstitutional, because it was in effect, a restriction upon interstate commerce.

In commenting on the case of Almy v. Cal., 24 How., 169 (65 U. S., XVI., 644), the court says: In Woodruff v. Parham, 8 Wall, 138 (75 U. S., XIX., 386), that the imposition of a tax on the bill of lading of gold and silver shipped from California to New York, was a regulation of commerce, in conflict with that freedom of transit of goods between one State and another, which is within the rule laid down in Crandall v. Nev., 6 Wall., 35 (73 U. S., XVIII., 745),

The 15th section fixes the maximum price which the manager of a grain warehouse in Chicago may charge for handling and storing grain.

If there is power to fix a maximum price, there is power to fix a minimum price, or to prescribe an arbitrary sum, without any flexibility whatever.

The Legislature by this Act, declares a mutual contract between the owner of grain and the warehousemen for handling and storing it, to be void and to constitute no defense to prosecution for a violation of the law. The freedom of commerce is thus completely destroyed.

The Legislature of Illinois is to-day in the control of the producing classes, but another time it may be within the management of the warehouseman and carriers. Once admit this power, and there will be no protection of the people from each other.

If the Legislature of Illinois can thus make commercial rules, the Legislature of New York can do so too. A statute may be passed in regard to the grain elevators at Buffalo, and the farmers and dealers of the west will be subject to such rules as New York pleases to enact, as well as those of Illinois. Every other State may exercise the same power, and it is to be supposed that retaliatory legislation would be the sure result. The object of the union of these States, which was to remove just such a state of affairs in the confederation, would be defeated.

This case has none of the elements of a revenue measure such as the case of Osborne v. Mobile, 16 Wall., 480 (83 U. S., XXI., 472).

The sections of the Act of the Legislature of Illinois alleged to be void, are repugnant to a part of the 5th clause of section 9 of article 1 of the Constitution.

"No preference shall be given by any regula tion of commerce or revenue, to the ports of one State over those of another."

The Statute of Illinois conflicts with this principle, for it gives the preference to warehousemen at all points in the State outside of the City of Chicago.

The Fourteenth Amendment ordains that no State shall deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

These provisions have been discussed to some extent in the Slaughter-House Cases, 16 Wall., 57 (83 U. S., XXI., 402), and Bartemeyer v. Iowa., 18 Wall., 132 (85 U. S., XXI., 930).

law of the land. Such a strange construction would render constitutional provisions of the highest importance inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general, permanent law for courts to administer or men to live under."

5 Webst. Works, 487.

This court says in Murray v. Hoboken Land and Improvement Co., 18 How.. 276 (59 U. S., XV., 374), The words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land,' in Magna Charta."

"Due process of law, implies and includes actor, reus judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceeding.

2 Coke. Inst., 47. 50; Hoke v. Henderson, 4 Dev. (N. C.), 15; Taylor v. Porter. 4 Hill, 146: Wynehamer v. People, 13 N. Y., 393; Cooley, Const. Lim., 351, et seq.,

The use of private property is protected as well as the property itself.

The only value of property is derived from its use. The beneficial title is far better than the naked legal title. Take from the owner the right to use it and receive its profits, and all that is valuable is taken.

Pumpelly v. Green Bay Co., 13 Wall., 177 (80 U. S., XX., 560).

This principle is asserted in Sinnickson v. Johnson, 2 Harr. (N. J.), 129; Gardner v. Newburgh, 2 Johns. Ch., 162; Pumpelly v. Green Bay Co. (supra).

The same principle has been applied to the construction of the part of the Constitution which prohibits any State from impairing the obligation of a contract.

Green v. Biddle, 8 Wheat., 1; Bronson v. Kinzie, 1 How., 311; Cooley, Const. Lim., 290; Walker v. Whitehead, 16 Wall., 314 (83 U. S., XXI, 357); Rawley v. Hooker, 21 Ind., 144; Ogden v. Saunders, 12 Wheat., 259; Willard v. Longstreet, 2 Doug. (Mich.), 172; Gantly v. Ewing, 3 How., 707.

This Act of the Legislature of Illinois does not come within the police power reserved to the State.

Blackstone defines the public police as the due regulation and domestic order of the kingdom, whereby the inhabitants of a State, like members of a well-governed family, are bound to conform in their general behavior to the general rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. 4 Bl. Com. 162.

cation. (6) Police of public amusements. (7) Police for recent intelligence. (8) Police for registration."

Edinburg ed. of works; part IX., 157. Cooley says; "The police of a State, in a comprehensive sense, embraces its system of internal regulation, by which it is sought, not only to preserve public order and to prevent offenses against the State, but also to establish, for the intercourse of citizen with citizen, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as it is reasonably consistent with like enjoyment of others." Cooley, Const. Lim. 572. Redfield says: "This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property in the State. According to the maxim, Sic utere tuo ut alienum non ladas, which, being of universal applica tion, must, of course, be within the range of legislative action to define the mode and manner in which everyone may so use his own as not to injure others."

Thorpe v. R. R. Co., 27 Vt. 149.

there was an analogy or comparison between this Act in regard to grain warehouses, called in the law, public, and the usury laws, and laws fixing tolls for mills and ferries, the regulation of prices charged by draymen and hackmen, and ordinances fixing the weight of bread. These instances of the exercise of legislative power to fix prices were accepted as proof that prices could be fixed for handling and storing grain.

In Bacon's Abridgment, Vol. 7, page 188, of the edition of 1807, under the head of "Usury at Common Law," is the following.

"Anciently it was holden to be absolutely unlawful for a Christian to take any kind of usury, and that whosoever was guilty of it was liable to be punished by the censure of the church in his lifetime; and that after death, if anyone was found to have been a usurer while living, all his chattels were forfeited to the King, and his land escheated to the lord of the | fee.' "Also it seemeth to have been the opinion of the makers of some Acts of Parliament, as 5th ed. VI, ch. 29, 13 Eliz. ch.8, sec. 5, and 21 Jac., I, ch. 17. sec. 5, that all kinds of usury are contrary to good conscience."

Subsequently, this view of usury became modified, and a limited interest was allowed by law, under heavy penalties, for exceeding the prescribed rate, starting with the Statute 12 C. II., and 12 Ann.

285.

To the same effect is:

ferry or a mill was a franchise depending upon the will of the sovereign.

Ang, Highw., sec. 47; Blissett v. Hart, Willes, 508.

The case of Mills v. Co. of St. Clair, 2 Gilm., 197, and the case of Dundy v. Chambers, 23 Ill. 369, recognized the doctrine that the right to keep and maintain a ferry is a franchise, and that the privileges granted are, in their nature, exclusive. The right emanates from the sovereign power, and is, therefore, necessarily subject to such regulation and restriction as the sovereign power may see fit to impose.

"To compel all the tenants within the King's manor to grind at the King's mill, is a personal prerogative of the King; but it will extend to a fee farmer, because it is for the King's advantage."

In an action on the case for erecting a mill, the Lord declared upon a custom for all the inhabitants to grind at his mill, and that the defendant had built a mill there contrary to custom. Adjudged a good custom and well pleaded. And suit to a mill may be, by reason of tenure of service, and also by custom, and so may bind strangers.

15 Vin. Abr., 398; Hix v. Gardiner, 2 Bulst (Hil. Term, 11 Jac.), 195.

The constitutional power to establish uniform weights and measures, is as applicable to a loaf of bread as it is to a bushel of corn; but the power to fix the price of a loaf of bread (if there is any such power) was, it is believed never exercised in this country, nor was it ever attempted to be exercised except in despotic governments, and only then in times of famine or other peculiar emergencies of the State.

It is entirely unnecessary to attempt any ex

planation of the radical differences between a drayman or hackman, whose place of business is in the public highway, and whose stock in trade consists simply of a horse and vehicle of some sort, and a warehouseman in the City of Chicago occupying his own private property, costing hundreds of thousands of dollars, for the purpose of a business strictly private in its

nature.

The sections of the Act of the Illinois Leg islature, are repugnant to the provision of the Fourteenth Amendment, that "No State shall deny to any person within its jurisdiction, the equal protection of the laws."

The purchase of grain stored in a Chicago warehouse by a citizen of another State, would not therefore constitute commerce between the States. If so, upon what ground can it be held that the storage of grain in public warehouses for the purpose of such sale, constitutes a part of such commerce? Such storage is not a mere incident of its transportation from one State to another. It is the storage or preservation of the grain by or for its owner, in the market where it is placed and kept for sale.

"The license tax in the present case was upon a business carried on within the City of Mobile. The business licensed included transporta. tion beyond the limits of the State, or rather in making of contracts within the State, for such transportation beyond it. It was with refer

Cooley, Const. Lim., 391.

"Every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitu tional and void."

Wally v. Kennedy, 2 Yerg., 554..

The owners of certain kind of grain warehouses in cities of over 100.000 inhabitants, are singled out as a class, and arbitrarily called class "A." The fact is, that Chicago is the only city in the State having over 100,000 inhabitants; the fact is, that there are fourteen of the kind of warehouses described in the Act; the fact is, that these are owned by about thirty persons. The law is, therefore, in effect, to regulate the warehouses of about thirty persons in a single city in the State.

The owners of elevators in Chicago are entitled to be governed by laws which operate equally upon all in the State. If a warehouseman in Quincy is permitted to control his own property and exercise personal liberty in regard to his compensation, while the same kind of a warehouseman in Chicago cannot, then the latter is deprived of the equal protection of the laws; a majority of one Legislature can fix prices for the minority, so in turn that the minority can obtain power at another Legislature, and fix prices for the products or merchandise of their adversaries.

Mr. James K. Edsall, Atty-Gen., of Illinois, for defendants in error:

The transportation of such grain from one State to another is undoubtedly comprehended within, and forms a part of, the "commerce among the several States." But such transportation is in nowise affected by the law in question. During the period of its storage in public warehouses in that city, its situs is there and it is subject to State laws.

Woodruff v. Parham, 8 Wall., 136 (75 U. S., XIX., 386).

In Paul v. Va., 8 Wall., 183 (75 U. S., XIX., 361), it is said: "Issuing a policy of insurance is not a transaction of commerce. They do not constitute a part of the commerce between the States, any more than a contract for the purchase and sale of goods in Virginia, by a citizen of New York while in Virginia, would constitute a portion of such commerce.'

was in part imposed. But it was no more a tax upon interstate commerce than a general tax on drays would be, because the licensed drayman might sometimes be employed in hauling goods to vessels, to be transported beyond the limits of the State."

Osborne v. Mobile, 16 Wall., 482 (83 U. S., XXI., 473); Nathan v. La., 8 How., 82.

A State may regulate the inspection and storage of grain in public warehouses, as a branch of its internal commerce. The power of the States to regulate their internal commerce cannot be seriously questioned:

People v. R. R. Co., 15 Wend., 135; Nathan v. La. (supra); nor the power of the State to pass inspection laws and to regulate the inspection of grain.

Gibbons v. Ogden, 9 Wheat., 203; SlaughterHouse Cases, 16 Wall., 63 (83 U. S., XXI., 404); Gilman v. Phila., 3 Wall., 726 (70 U. S., XVIII., 99); Mayor of N. Y. v. Miln, 11 Pet., 133.

The right of the importer of foreign commodities to an immunity from state taxation upon his sales thereof, exists only so long as he retains the same in their original packages, and ceases as soon as the same are either sold by him or become confused in the general mass of property in the State.

Brown v. Md., 12 Wheat., 419; License Cases, 5 How., 574.

We insist that under no construction of this constitutional provision, which has ever received the sanction of the courts, can it be held that the act in question deprives warehousemen of their property without due process of law, although it prescribes the maximum rates which may be charged for the storage of grain by those following the vocation of public warehousemen.

Slaughter-House Cases (supra).

Where the owner of property is left in the unmolested possession and enjoyment of his property, he is not "deprived thereof, within the meaning of this section."

To constitute such deprivation or taking, it must be seized and appropriated to public use or to the use of another.

Sharpless v. Mayor of Phila., 27 Pa. St., 166; Grant v. Courter, 24 Barb. (N. Y.), 232.

Any proper exercise of the powers of Government which does not directly encroach on the property of an individual or disturb him in its enjoyment, is not a taking or deprivation of its property within the meaning of the Con

stitution, and will not entitle him to compensation, or give him a right of action.

Cooley, Const. Lim., 1st ed., 511.

The law neither takes from, nor deprives any warehouseman of his property. It simply provides that if he uses his property for a specific purpose, and follows the vocation of a public warehouseman, he shall conform to certain regulations deemed essential to the protection of public interests.

A Massachusetts statute, which imposed a penalty on “Any person who shall take, carry away or remove any stone, gravel or sand from any of the beaches in the Town of Chelsea," passed for the protection of Boston Harbor, was held to extend to the owners of the soil as well as strangers, but not to be such a taking of private property and appropriating it to public use, within the meaning of the declaration of rights, as to render it unconstitutional and void, although no compensation was therein provided for the owner.

Com. v. Tewksbury, 11 Met., 55; Com. v. Alger, 7 Cush., 86.

The shipping of grain in bulk, and receiving and handling the same in modern elevators, the constant and almost uniform practice of confusing in one mass the property of different owners, the issuing of negotiable warehouse receipts to be used in commercial transactions as the ordinary evidence of title to grain in store, and the combinations among warehousemen to prevent legitimate business competition, are of quite recent development, and are not within the scope or purview of the old authorities relating to the duties and liabilities of warehousemen and forwarding merchants.

People v. R. R. Co., 55 Ill., 112.

The judicial reports of Illinois furnish ample evidence of the tendency of railroad companies and proprietors of grain elevators and ware houses, to enter into combination to secure a monopoly of the storage of grain; and to compel shippers from the interior to consign their grain to such warehouses in Chicago for storage as may suit the purposes of the managers of the railways and warehouses.

R. Co. v. People, 56 Ill., 367; Vincent v. R. R. Co., 49 Ill., 33; People v. R. R. Co., 55 Ill., 95.

It thus appears that a few persons, following the vocation of public warehousemen for the storage of grain in Chicago, occupied such a position that, unless restrained by law, they could impose such charges as they saw fit, upon all the grain shipped to that market for sale, and the shippers had no alternative but to submit to their demand.

Warehousemen for the storage of grain in the manner business is conducted at Chicago, are engaged in a public employment as distinguished from ordinary business pursuits. In this regard they occupy a position similar to common carriers, who are held to "exercise a sort of public office," and have public duties to perform.

Nav. Co. v. Bk., 6 How., 382; Sandford v. R. R. Co., 24 Pa., 381; Coggs v. Bernard, 2 Ld. Raym., 909; R. R. Co. v. People, 56 Ill., 377.

Like common carriers, they are required by law to receive grain from all persons, and store the same upon equal terms and conditions. See 4 Orro. U. S., Book 24.

R. S. of Ill., of 1874, p. 821, sec. 101; Ross v. Johnson, 5 Burr., 2827.

In like manner they have a lien for their just charges upon the grain stored with them. R. S. of Ill., of 1874, p. 821, sec. 106; Story, Bailm., sec. 453.

The right of a lien has always been admitted where the party was bound by law to receive the goods of another as bailee.

Grinnell v. Cook, 3 Hill (N. Y.), 491.

It was held by the Supreme Court of Illinois before the enactment of any statute to that effect, that common warehousemen were, at com. mon law, entitled to a lien for their proper charges on the property stored with them.

Low v. Martin, 18 III., 288; Steinman v. Wilkins, 7 Watts & S., 466.

The 1st section of article XIII. of the Constitution of Illinois is as follows:

Sec. 1. All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses.

64

Although the ownership of the property is private, the use may be public in a strict legal sense. Hence, in judicial opinion, the terms public wars,' 'public roads,' public houses" and " public warehouses," are of frequent occurrence, although the property may be the subject of private ownership.

Dutton v. Strong, 1 Black, 32 (66 U. S., XVII., 32); Ives v. Hartley, 51 Ill., 523; Olcott v. Supervisors, 16 Wall., 678 (83 U. S., XXI., 382).

Whether the use of a railroad is a public or a private one, depends in no measure upon the question, Who constructed it, or who owned it? It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the function performed is that of the State. Though the ownership is private, the use is public. So turnpikes, bridges, ferries and canals, although made by individuals under public grants, or by companies, are regarded as publici juris."

Olcott v. Supervisors (supra).

When the owners of grain warehouses open the same to the general use of the public, and exercise the statutory right of confusing the grain of different owners in one indistinguishable mass for which negotiable receipts are issued under the statute; when they take possession of the "gateway of commerce," and place themselves in such position, and pursue their vocation in such manner, that the grain dealers and producers have no option but to use their warehouses for the storage of grain, we respectfully submit that their warehouses may without impropriety, be designated "public," and that the constitutional convention and General Assembly of Illinois were quite excusable for treating them as such, and had authority to make all necessary regulations respecting such public use.

This general proposition is fairly deducible from the authorities:

Whenever a person pursues a public calling and sustains such relations to the public that the people must of necessity deal with him, and are under a moral duress to submit to his terms if he is unrestrained by law, then in order to 81

6