same lines the court, in Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, held that no exemption from the police power resulted from a charter authorizing the manufacture of animal matter into a fertilizer in a certain selected locality, because such charter did not constitute a contract guaranteeing such an exemption, no matter how serious the nuisance might become in the future by reason of growth or population in such locality. In Stone v. Mississippi, 101 U. S. 814, the Court,-after holding that no legislature can curtail the power of its successors to make such laws as they may deem necessary in matters of police, said: "The contracts which the Constitution protects are those that relate to property rights, not governmental. It is not always easy to tell on which side of the line that separates governmental from property rights a particular case is to be put; but in respect to lotteries there can be no difficulty." In Mugler v. Kansas, 123 U. S. 623, it was held that there was no conflict between the Prohibition Law of Kansas and that clause of the Fourteenth Amendment which provides that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law;” that by the adoption of the amendment in question the states did not intend to restrict the exercise of their police powers for the protection of the health, morals or safety of the community, that a prohibition simply upon the use of property declared by the legislative power to be injurious to the health, morals or safety of the public, can not in any proper sense be deemed a taking of property for the public benefit; that when any illegal manufacture or traffic is injurious to such interest, the state has power to declare any place employed or maintained for such illegal traffic or manufacture a common nuisance, which may be abated, despite the incidental inconvenience which individuals or corporations may suffer. That principle, which always subordinates the

rights of individuals in harmful materials to the general welfare, underlies California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, in which it was held that a municipal ordinance requiring garbage to be delivered and destroyed at a designated crematory at the expense of the person delivering the same is not a taking of private property for the public use without compensation, even if the substances so destroyed may have had some elements of value; and Gardner v. Michigan, 199 U. S. 325, in which it was held that the due process of law clause of the Fourteenth Amendment was not violated by an ordinance giving to a city contractor the exclusive right to collect and dispose of garbage, so far as it relates to the refuse from hotel tables, although such refuse might be valuable as food for swine, and for other purposes.

§ 186. Property or business clothed with a public interest. In the great case of Munn v. Illinois, 94 U. S. 113, in which it was held that when private property is devoted to a public use, it is subject to public regulation, the Court said: "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control. Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris, 1 Harg. L. Tr. 6, the King has 'A right of franchise or privilege, that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the King, . . . because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a

public regulation.' And again, as to wharves and wharfingers, Lord Hale, in his treatise De Portibus Maris, already cited, says: 'A man, for his own private advantage, may in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, houselage, pesage, for the doth no more than is lawful for any man to do, viz.: make the most of his own. If the King or subject have a public wharf, into which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharves only licensed by the Queen, or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there can not be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc., neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the King's license or charter. For now the wharf, and crane and other conveniences are affected with a public interest, and they cease to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest.'"

Thus it appears that in defining the scope of the police power over "property affected by a public interest," as employed by ferrymen, warfingers, innkeepers, warehousemen, millers, and common carriers, the court based its judgment upon medival precedents current at a time when the police power of the state, as enforced not only by the King in parliament but by the King in council, covered an almost indefinable area, embracing the regulation of both prices and wages. (See Freund, Pol. Power, 374; Cunningham, Growth of English Com., vol. II, p. 232; The Power of the State to Regulate Prices and Charges, by G. A. Finkelnburg, 32 Am. L. Rev. 502; note to Munn Case, 16 Am. Law Reg. N. S. 539; McGehee, pp. 315-316). The principle of a virtual monopoly as a basis for the doctrine in question,-thus stated by Mr. Justice

Bradley in his dissenting opinion in Sinking Fund Cases, 99 U. S. 700, 747: "When an emqloyment or business becomes a practical monopoly, to which the citizen 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,-" was however apparently abandoned in Brass v. Stoeser, 153 U. S. 391, 403, and later cases. By the Munn case, and the other so-called "granger cases" the doctrine was firmly settled that although the warehouses affected are used by those engaged in interstate commerce as well as in commerce within the state, a state statute fixing the maximum of charges for the storage of grain is not unconstitutional as a regulation of commerce (Hall v. De Cuir, 95 U. S. 487; Morgan's S. S. Co. v. Board of Health, 118 U. S. 467; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 564); that a statute fixing a maximum charge for the storage of grain does not violate the equal protection of the laws granted by the Fourteenth Amendment (Stone v. Farmers' Loan and T. Co., 116 U. S. 335); that as private property devoted to a public use is subject to public regulation, the legislature of a state can, under the Federal Constitution, fix maximum rates for the storage of grain in warehouses in the state; that "for protection against abuses by legislatures the people must resort to the polls, not to the courts." (Munn v. Illinois, 94 U. S. 113, 133, 134).

In German Alliance Ins. Co. v. Lewis, 233 U. S. 389, the Court, after reviewing Munn v. Illinois, said: "The cases need no explanatory or fortifying comment. They demonstrate that a business, by circumstances and its nature, may rise from private to be a public concern, and be subject in consequence, to governmental regulation. And they demonstrate, to apply the language of Judge Andrews in the Budd Case (117 N. Y. 27), that the attempts made to place the right of public regulation in the cases in which it has been exerted, and of which we have given example, upon the ground of special privileges conferred

by the public on those affected, can not be supported. "The underlying principle is that business of certain kinds hold such a peculiar relation to the public interest that there is superinduced upon it the right of public regulation.' Is the business of insurance within the principle? It would be a bold thing to say that principle is fixed, inelastic, in the precedents of the past, and can not be applied though modern economic conditions may make necessary or beneficial its application. In other words, to say that government possessed at one time a greater power to recognize the public interest in a business and its regulation to promote the general welfare than government possesses to-day. We proceed, then, to consider whether the business of insurance is within the principle." The outcome was the conclusion that the fire insurance business is so far affected with a public interest as to justify a regulation of its rates by the legislature without offense to the due process clause of the Fourteenth Amendment, despite the fact that no public trust is imposed upon the property, and that the public may not have a legal right to demand and receive service.

§ 187. Interstate Commerce act and the common law. The principles of the common law applicable to common carriers regulated the railway traffic of this country prior to the Interstate Commerce Act. Interstate Com. Com. v. Baltimore & O. R. Co., 145 U. S. 263. In the absence of such statutory regulation a railroad company owes only such duties to the public or to individuals, corporations or associations as the common law, or some custom having the force of law, has established. Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667. The act of Congress to regulate commerce of the United States, foreign and interstate, created a commission which is a body corporate, entitled to apply to the judicial power for the enforcement of its orders. Texas & P. R. Co. v. Interstate Com. Com., 162 U. S. 197. But that act leaves common carriers free, as they were at common law,