same power of regulating the speed and general conduct of ships or other vessels navigating its water highways, that it has to regulate the speed and conduct of persons and vehicles upon the ordinary highway; subject always to the restriction that its regulations must not come in conflict with any regulations established by Congress for the foreign commerce or that between the States.1 Levees and Drains. Where, under legislative authority, the construction of levees and embankments is required, to protect from overflow and destruction considerable tracts of country, assessments are commonly levied for the purpose on the owners of lands lying on or near the streams or bodies of water from which the danger is anticipated. But if the construction should be imposed as a duty upon residents or property owners in the neighborhood, that they should turn out periodically or in emergencies, and give personal attention and labor to the construction of the necessary defences against overflow and inundation, it is not perceived that there could be any difficulty in supporting such a regulation as one of police, or of resting it upon the same foundations which sustain the regulations in cities, by which duties are imposed on the occupants of buildings to take certain precautions against fires, not for their own protection exclusively, but for the protection of the general public.2 Laws imposing on the owners the duty of draining large tracts of land which in their natural condition are unproductive, and are a source of danger to health, may be enacted under the same power,3 though in general the taxing power is employed for the purpose;1 and sometimes land is appropriated under the eminent domain.5 1 People v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470. As to the right to regulate fisheries in navigable waters, see Gentile v. State, 29 Ind. 409; Phipps v. State, 22 Md. 380; People v. Reed, 47 Barb. 235. 2 Cooley on Taxation, 401, 402. See State v. Newark, 27 N. J. 185, 194, per Elmer, J.; Crowley v. Copley, 2 La. Ann. 390. In Pennsylvania it has been held that the State cannot, as a measure of police, compel the owner of lands bounded on inland tide-water to construct embankments to exclude the natural flow of the water, but that where the State con structs them at its own expense, and leaves them in possession of the owner, it may impose on him the duty of repair. Philadelphia v. Scott, 81 Penn. St. 80. See State v. City Council of Charleston, 12 Rich. 702, 733. 4 Reeves v. Treasurer of Wood Co., 8 Ohio, N. 8. 333; Sessions v. Crunklinton, 20 Ohio, N. s. 349; Egyptian Levee Co. v. Hardin, 27 Mo. 495; McGeehee v. Mathis, 21 Ark. 40; Yeatman v. Crandall, 11 La. Ann. 220; Scuffletown Fence Co. v. McAllister, 12 Bush, 312. 5 Commissioners empowered to Regulation of Civil Rights and Privileges. Congress, to give full effect to the fourteenth amendment to the federal Constitution, passed an act in 1875, which provided that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land and water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. As the general power of police is in the States, and not in the federal government, the power of Congress to make so sweeping a provision may possibly be brought in question; but as the States have undoubted right to legislate for the purpose of securing impartiality in the accommodations afforded by innkeepers and common carriers, and as the proprietors of theatres and other places of public amusement are always subject to the license and regulation of the law, a corresponding enactment by the State would seem to be competent, and has been sustained as a proper regulation of police.2 Regulation of Business Charges. In the early days of the common law it was sometimes thought necessary, in order to prevent extortion, to interfere, by royal proclamation or otherwise, and establish the charges that might be exacted for certain commodities or services. The price of wages was oftener regulated than that of any thing else, the local magistrates being generally allowed to exercise authority over the subject. The practice was followed in this country, and prevailed to some extent up to the time of independence. Since then it has been commonly supposed that a general power in the State to regulate prices was inconsistent with constitutional liberty. It has nevertheless been conceded that in some cases this might be done, and the question of the bounds to legislative power has recently been made prominent in what are known as the Chicago Warehouse Cases. The legislature of Illinois, on the supposition that warehouse charges at Chicago were excessive and unfair, undertook to limit them to a maximum. They also required warehousemen to take out straighten a river to protect a country against inundation are not liable personally for incidental injuries to individuals. Neither is there any claim against the public. Green v. Swift, 1 Laws of 1875, c. 114. licenses and observe various regulations, which are not important here, and imposed certain penalties for a refusal to observe the statute. The validity of the legislation was affirmed by the State court, which overruled various objections made on constitutional grounds, among which was, that in effect it deprived warehousemen of their property without due process of law. The warehousemen denied wholly the right of the legislature to prescribe charges for private services or for the use of private property, and it was urged by them that, if admitted at all, no bounds could be set to it. The court, in sustaining the power, placed it upon the same ground with the right to regulate the charges of hackmen, draymen, public ferrymen, and public millers. The case being removed to the federal Supreme Court, the decision of the State court was affirmed, and the principle fully approved. The ground of the decision appears to be that the employment of these warehousemen is a public or quasi public employment; that their property in the business is "affected with a public interest," and thereby brought under that general power of control which the State possesses in the case of other public employments. Says Mr. Chief Justice Waite: "Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day statutes are to be found in many of the States upon some or all these subjects, and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property." 2 Some of the cases here referred to seem plain enough. Ferries are public highways, and when individuals are permitted to establish them, they are allowed the sovereign prerogative of charging and collecting tolls; and tolls can never be taken except by permission of the State, which generally ought to and does 1 Munn v. People, 69 Ill. 80. In this case, Justices McAllister and Scott dissented. 2 Munn v. Illinois, 94 U. S. Rep. 113, 125. In this case, Justices Field and Strong dissented. prescribe their limits. A hackman exercises a public employment in the public streets; one which affords peculiar opportunities for impositions and frauds, and requires special supervision, insomuch that it is commonly thought necessary to prohibit one making himself such except with permission of the State, and the number is sometimes limited so as in effect to give special privileges. The rates of toll, when mills grind for toll, is usually fixed by law; but there is nothing exclusive in this: the parties may make their own bargains, and the legislative rate only controls where the parties by implication have apparently acted in reference to it. In England, formerly, the lords of manors, as mill-owners, had exclusive rights; and where an exclusive right exists in one's favor, to compel the public to deal with him, we should have no doubt of the right in the State to compel him to deal fairly with the public. Such a right existed in the English warehouse case of Allnutt v. Inglis, in which the Court of King's Bench denied the right of the warehousemen to fix their own charges at discretion, when the public, under exclusive privileges conferred upon them, were compelled to deal with them.2 What circumstances shall affect property with a public interest is not very clear. The mere fact that the public have an interest in the existence of the business, and are accommodated by it, cannot be sufficient, for that would subject the stock of the merchant, and his charges, to public regulation. The public have an interest in every business in which an individual offers his wares, his merchandise, his services, or his accommodations to the public; but his offer does not place him at the mercy of the public in respect to charges and prices. If one is permitted to take 112 East, 527. 2 In Munn v. People, 69 Ill. 80, 91, Chief Justice Breese, in speaking of the power to " make all needful rules and regulations respecting the use and enjoyment of property," speaks of familiar instances in which the exercise of it in the State has been unquestioned, and among them, "in delegating power to municipal bodies to regulate charges of hackmen and ⚫ draymen, and the weight and price of bread." Regulating the weight of bread is common, and necessary to prevent imposition; but regulating the price of bread we should suppose would now meet with such resistance anywhere, as would require a distinct determination upon its constitutional rightfulness. How the baker can have the price of that which he sells prescribed for him, and not the merchant or the day-laborer, is not apparent. Indeed, to admit the power seems to render necessary the recognition of the principle that there is and can be no limit to legislative interference but such as legislative discretion from time to time may prescribe. upon himself a public employment, with special privileges which only the State can confer upon him, the case is clear enough; and it seems to have been the view of both courts in this case, that the circumstances were such as to give the warehousemen in Chicago, who were the only persons affected by the legislation, a "virtual" monopoly of the business of receiving and forwarding the grain of the country to and from that important point, and by the very fact of monopoly to give their business a public character, affect the property in it with a public interest, and render regulation of charges indispensable.1 The phrase "affected with a public interest " has been brought into recent discussions from the treatise De Portibus Maris of Lord Hale, where the important passage is as follows: "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, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own. If the king or subjećt have a public wharf unto 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 cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c., 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, 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." If the case of a street thrown open to the public is an apt 1 See what is said by Breese, Ch. J., in 69 Ill. 88-89, and by Waite, Ch. J., in 94 U. S. Rep. 131. In Attorney-General v. Chicago, &c. R. R. Co., 35 Wis. 425, 589, Chief Justice Ryan, in his very able opinion affirming the right to fix railroad charges by amendment to charters which reserved the power of amend ment, intimated decided views in |