based upon the assumption that the cases are substantially alike in their facts, and the question is this: In construing a clause in our State Constitution similar to one in the Federal instrument, should we follow the interpretation of such clause as given by the Federal court, which interpretation compels us to deny to these defendants the relief they ask for, although otherwise we are satisfied that they are justly entitled to that relief?

If any right, privilege or immunity claimed under the Federal Constitution or laws be denied by this court, its decision is reviewable in the Supreme Court, and in such cases it is our duty to follow in the footsteps of that court, and to be guided and controlled by its decisions. But in this case the right is claimed under our State Constitution, and in matters pertaining to its proper construction our decision is final, excepting that if, as construed by us, the Constitution or our laws deny the existence of some right or privilege claimed by a party by virtue of the Federal Constitution or laws, our decision is reviewable by the Federal court, not for the purpose of reviewing our construction of our own Constitution or laws, but to see whether under the Constitution or laws as construed by us, any right or privilege existing by virtue of the Federal Constitution or laws has been violated or denied, and, if so, to give it effect, notwithstanding the State law or Constitution. But where we deny no right or privilege claimed, and, on the contrary, assert and protect it, there is no review by the Federal court possible. When the privilege or immunity is claimed under our State Constitution, and we believe that it is rightfully and legally claimed, although the claim rests upon a clause which is similar to the one in the Federal instrument, under which it has been denied by the Federal court, nevertheless we ought, as we think, to give expression to our own judgment, under the sanction of our official duty, to declare the law as we believe it to exist, notwithstanding we differ with the conclusions arrived at by the Federal court. In so doing we decide against no right, privilege or immunity claimed under the Federal Constitution or laws, but, as a State court, we decide in a matter over which we have full jurisdiction-upon the proper construction to be given to the fundamental law of the State. We therefore proceed to give our views on the subjectmatter involved in these appeals.

It is, perhaps, needless to inaugurate the discussion of the question by an expression of the very great respect we feel for the Federal Supreme Court, and for each of its distinguished and learned members, and yet in doing so we must give voice to the sentiments which, as we believe, possess judges and citizens alike throughout the land. It is only in the performance of our official duty that we venture to differ from that court regarding matters which we are bound to decide, and when there is an equal obligation to decide them in accordance with our own deliberate views. The case of Munn v. Illinois, 94 U. S. 113, has been referred to in our court but sparingly, as there has not been very frequent occasion for such reference. It was referred to in Bertholf v. O'Reilly, 74 N. Y. 509; Boardman v. Railway Co., 84 id. 157, 186; People v. King, 110 id. 418, at 424, 428, and in Railroad Co. v. Railroad Co., 111 id. 132. These are the only cases I have observed, although there may be others which have escaped my attention.

In Bertholf v. O'Reilly, 74 N. Y. 509, it was decided that the Legislature has power to create a cause of action for damages, in favor of one who is injured in person or property by the act of an intoxicated person, against the owner of real property whose only connection with the injury is that he leased the premises, where the liquor causing the intoxication was sold or given away, with knowledge that intoxicating liquors were to be sold thereon. In speaking of the po

lice power, Andrews, J., in above case, cited the Slaughter-House Cuses, 16 Wall. 36, and Munn v. Illinois, supra, to show how far courts have gone in upholding legislation affecting private rights and property as a due exercise of the police power residing within the State. He said those cases may perhaps be deemed to have carried the right of legislative interference with private rights and property to its utmost limit, but they illustrate the scope of the police power in legislation." The legislation in question in the Bertholf Case was placed upon the right of the Legislature to control the use and traffic in intoxicating liquors; and its authority to impose liabilities upon those who exercise the traffic, or who sell or give away intoxicating drinks, for consequential injuries to others, the court said, follows as a necessary incident. Such right of legislation as to the prohibition or regulation of the sale, etc., of intoxicating liquors, comes within the narrowest definition of the police power, and is substantially denied by no one. In the Bertholf Case there was nothing which called for the approval or affirmance of the Case of Munn, or the very broad principle asserted in and underlying that case. It was referred to, as stated in his opinion, by Andrews, J., for the simple purpose of showing to what extent some courts had gone, and it was stated to be one where the right had been carried to its utmost limit, but the limit itself was neither approved nor disapproved. Nothing in Boardman v. Railway Co., 84 N. Y. 157, 186, is material upon the question. It was simply stated that the Munn Case did not bear out the contention for which it was cited by the appellant.

In People v. King, 110 N. Y. 418, 424, 428, the question was whether the law securing to colored persons the right to admission on equal terms with others to public resorts, and to equal enjoyment of privileges of a quasi public character, was a valid law as applied to defendant's place of amusement. It was held so to be. The police power, it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. No one questions it in regard to either of those two important branches of government. The extent of its proper exercise in such cases is open however to some differences of opinion. The place of amusement of King was held to be so far public with reference to this specific power as to permit of its exercise, and the very point of the decision was that the public had this right of resort to plaintiff's premises by his own dedication, even including colored persons, upon payment of the prescribed fee. Judge Cooley supports the legality of laws regulating places for public amusement, such as theaters, etc., upon the ground that they are properly the subject of police regulation, as they are generally li censed by the State or municipality wherein they ex ist. See Cooley Torts, 285. But I have failed to observe any statute in this State which attempts to limit the price which a theatrical manager shall be allowed to charge for admission to his entertainments. Proper police regulation and inspection, to the end that peace and good order may be obtained and public morals reasonably protected, is one thing, while a power to limit compensation is another and far greater and more dangerous power, and the two powers are not necessarily co-existent. The latter power is not only a dangerous one, but it is not called for by the same principles which permit, and, indeed, demand, the exercise of the former under a general right to regulate the manner, within reasonable rules, in which a man shall use his property so as not to improperly interfere with the proper enjoyment by his neighbor of his own property, or so as not to injure the public health or morals, and in order that proper safeguards may be observed for escape in times of fire. In the King Case Judge Andrews said: "The principle stated by Waite, C. J., in Munn v. Illinois, which received the assent of

the majority of the court, applies in this case; "the principle being that where one devotes his property to a use in which the public have an interest he, in effect, grants to the public an interest in such use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. There was nothing in the case in this court which affirmed the correctness of the doctrines of the Munn Case, as applied to the facts upon which the decision in that case was based.

* **

In Railroad Co. v. Railroad Co., supra, both parties were corporations. Ruger, C. J., said: It is unnecessary to discuss this proposition with much fulness, as it was conceded by the appellant that the authority of the Legislature, in the exercise of its police powers, could not be limited or restricted by provisions of contracts between individuals or corporations; and the contract between the parties as to the rate of fare was held subordinate to the legislative power to regulate the fare to be charged by the corporations.

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from the sovereign power, merely because the property is conveniently situated for the business, and it would cost a large amount of money to duplicate it. So long as every one is free to go into the same business, and invest his capital therein with the same rights and privileges as those who are already engaged in it, there can be no monopoly, in the legal acceptation of that term, virtual or otherwise.

I contend, that within the subject now under review, the meaning of the phrase, "devoting one's property to a public use," as evidenced in the cases cited by the learned chief justice, and also in other cases in this State, is that such devotion or dedication is made when by reason of it the public thereafter have a legal right to resort to the property, and to use it for a reasonable compensation, or for such as the law provides, or else where some privilege or right is granted by the government, in which case the right of limitation is based upon and is really a part consideration for the grant. In the one case the legal right to resort to and use the property by the public, so long as the owner chooses to remain in the business, springs from this dedication, and it is the criterion that is to decide the question whether the property has or has not been thus dedicated; and this right does not spring into existence merely because the business is such as interests a great number of the public, or because it is of large extent, or because there is no other property at that place which is or conveniently may be devoted to the same kind of business, while, in the other case, the right of limitation exists because some privilege or franchise has been granted to the owner by the sovereign power, an acceptance of which car

It was

Two factors seem to have eutered into the proposition as developed by the court, one of which was the extent of the business, and the other that in its performance there was a "virtual" monopoly. The combination of extent of user and so-called virtual monopoly seems, in the mind of the court, to have had the effect of clothing the property with this public interest, and hence to have imposed upon its owners the necessity of submitting to the limitation of their compensation. It has never been carried to any such extent in this State. Various instances of the application of these principles were cited by way of illustration, and it was asserted that no new principle of the law was created, but simply an application of an old principle to a new and different state of facts. The learned chief justice, who delivered the opinion of a majority of the court, after citing these instances, thus continued: "Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the cartman, or the hackney coachman pursues a public employment, and exercises a sort of public office,' these plaintiffs in error do not." Therefore it was held that the business done by the owners of the elevators or warehouses was such as to clothe their property thus used with a public interest, and it ceased to be juris privati only. I have examined, with very great care and attention, the various authorities cited by the court as illustrations of the principle laid down, and with great diffidence I am compelled to say, as the result of such examination, that it seems to me they do not justify the application of the principle to the case then before the court. See Tied. Lim. 230. If it be assumed that when one devotes or dedicates his property to a public use the public then has an interest in such use, and that therefore his compensation may be limited by law, still I deny that such devotion or dedication is made merely because the owner has embarked his property in a business in which large numbers of the public are interested in its use; and I also deny that any such person has a virtual or any monopoly in the business, without a grant thereof

for the service. As has been said, the right to regulate places of public amusement, such as theaters and the like, comes from another branch of the police power, and, as I believe, does not extend to the power to limit prices. The right to make use of the owner's property, by reason of a dedication, has been held to have been created in the exceptional cases of a common carrier, the keeper of a common inn, and a common or public wharfinger, and perhaps in some others. These are exceptional cases, for they trench upon the well-grounded principle that no man can be compelled to enter into business relations with another unless the party carrying on the business shall have received some privilege, right or franchise from the sovereign power, when such compulsion may be annexed to the grant. The principle should not be extended. To include within its grasp the case of a warehouseman, who has no privilege from the sovereign power, but simply builds his warehouse on the shores of a navigable stream, and upon his own property, would be to overturn cases adjudged in this court and regarded as the law for many years past. The same is true of the owner of an elevator, who receives nothing from the State. See Wetmore v. Lead Co., 37 Barb. 70; Wetmore v. Gas-Light Co., 42 N. Y. 384. In most of the cases cited by the court in the Munn Case the right of limitation springs from a license or privilege awarded by the government, and this right of regulation or limitation is ingrafted on or inheres in such license as a condition of the exercise of such privilege. Thus, hackmen and cartmen have the privilege to stand in the public streets in exercising their calling, and the public has the right, in return for such license, to demand their services on tender of proper compensation. The same is true as to ferries, which are but parts of the highway (Mayor v. Starin, 106 N. Y. 1), and the right to establish them rested exclusively in the crown, or, in this country, in the people. Consequently, when established in that way, the right of regulating or limiting the tolls remained in the sovereignty granting the license, and was exercised accordingly. The an. cient right to regulate the toll which millers should

charge rested on the right, at common law, which the lord of the manor had to compel all his tenants to grind their corn at his mill, and no one could set up a mill but by his license or that of the crown, and with such license went the right of regulation as to the tolls to be received. See Cooley Coust. Lim. 735; 15 Vin. Abr. 398, 399. As to the interest on money, and the right to regulate it, it was by the common law prohibited to any one to take any interest for the use of money, and subsequently, when Parliament altered the common law, it simply allowed interest to be taken up to a certain percentage and upon certain terms. Tied. Lim., § 94. All the instances above cited are commented on in the very able dissenting opinion of Mr. Justice Field in the Munn Case (concurred in by Mr. Justice Strong), and the same reasons for the exercise of the power to regulate these different branches of business are therein stated in a much more full and complete way than I have done.

As is said, there can be no legal objection to the power to direct the weight of a loaf of bread, for that is a mere police regulation, interfering with no man's real liberty, and it is the same as if the length of a yard were declared by law, or the weight of a ton. But I deny the right of any Legislature in this country to limit the price for which an individual baker shall sell his bread per loaf, or the price per ton for which a coal dealer shall sell his coal, or the price which a tailor shall charge for his coat, or the shoemaker for his shoes. A common carrier exercises, it has been stated, a kind of public office, and when a man devotes himself to such a calling, and holds himself out to the public as a common carrier, he thereby grants to the public such an interest in his business that each individual has the legal right to demand the carriage of his property by the carrier upon the payment of tender of a reasonable compensation for carriage, in the absence of a legal regulation thereof. Allen v. Sackrider, 37 N. Y. 341. He thus becomes a common carrier because of this dedication to the general public, and this legal right of the public to demand this service springs from such dedication. The same is true of a public wharfinger or the keeper of a common inn. They were all called "" common in their several occupations, and were common because they held themselves out as such to the public, and, as was said in some of the old books, entered into a general contract with the whole public to do the work, and hence arose the right of the public to call upon them to fulfill this contract. No such right of access to the premises of defendants exists, and no such right to demand the use of their property can be, or, as I understand, is pretended. But unless the innkeeper was the keeper of a common inn, or the carrier a common one, or the wharfinger was a public one, no matter what the extent of their business, or how large a number of the public were entertained by them, as the public had no right of resort to their premises, or to demand transportation for or the care of their goods, or entertainment at their house, the right of regulation did not exist as to the compensation they should receive. The cases are, as has been said, exceptions to the general rule that no man can be compelled to have business relations with another. See Tied. Lim., § 92, p. 226. There is no satisfactory ground, in my judgment, upon which the power may be based to regulate or limit the price of transportation by a common carrier, or the price of entertainment by an innkeeper, who is a private individual, and who has received no privileges from the State of any kind. To say that the carrier (while a private individual) holds a kind of public office, and therefore his prices should be limited, is not, as it seems to me, a very accurate description of his attitude to the public. He holds no office, public or private, within any fair meaning of such word; and there is no reason, in justice or common sense, why his compensation should be limited by

law which would not hold good in the case of every individual dealing with the public, and holding himself out as ready, willing and eager to sell his goods to all

comers.

The rule as to private individuals who happened to be common carriers or innkeepers, etc., was established in the earlier days of the law, and it was regarded by Lord Hale as most proper that individuals who followed such callings should be placed under State supervision and control. The habits, customs and general intelligence of the people of those days were far different from those of to-day; and laws which might possibly be pardoned on account of ignorance, sparseness of population, difficulties of communication, and rural and unsettled habits of life, can have no such justification in our times. It must be constantly borne in mind that in those days the theory of a paternal government, which was to watch over and protect the individual at every moment, to dictate the quality of his food and the character of his clothes, his hours of labor, the amount of his wages, his attendance upon church, and generally to care for him in his private life, was almost at its height. The famous statute of 5 Elizabeth, chapter 4, concerning laborers, was in full force when Lord Hale wrote. 6 Lecky England in Eighteenth Century, 233. That statute assumed to regulate the existence and determine the numbers of the artisans in the whole country. It provided how long one should work as an apprentice; how many there should be in proportion to journeymen; where they should live; under what circumstances move to another neighborhood; how many hours they should labor, and for how long a time a journeyman should be employed; and, finally, it provided that wages should be assessed for the year by the justices of the peace, who were also directed to settle all disputes between masters and apprentices. By an act of 1 Jac. I, chapter 6, the above act was extended by giving to the justices power to fix the wages, not only of journey men and apprentices, but of all kinds of laborers and workmen. During this time also there were statutes making it a felony to export wool from England, and the exporter of sheep, rams or lambs was liable to imprisonment, the forfeiture of all his property, and to have his left hand cut off for the first offense, and for the second offense to be adjudged a felon, and to suffer death accordingly. See 8 Eliz., chap. 3; 13 and 14 Car. II, chap. 18. Provisions were extant forbidding exportation of hides, raw or tanned leather, and many other things, and all for the supposed benefit of the kingdom or the various interests in whose favor the legislation was enacted. Smith's Wealth of Nations, by McCulloch, 292 et seq. Laws were then in force which regulated down to the minutest detail the manner of life, and the texture of the dress, and the costliness thereof, and the variety of dishes upon the tables of the people. Special laws determined how much land of an estate should be plowed, and how much left in pasture; how much was to surround a laborer's cottage; how many sheep should be supported on a farm. 6 Lecky England in the Eighteenth Century, 231 et seq.

In speaking of the above-mentioned statute of Elizabeth, the late Mr. W. Stanley Jevons, in his little work on the State in Relation to Labor, in the English Citizen Series, at page 34, says that it was a monstrous law, and that, according to the opinion of historians, it represented the triumph of the craft guilds, that is, the mediæval trade-unions, and that in operation it was, there is reason to believe, little more than a dead letter. In the same work the author says that the justification of State interference in matters of private concern, as in the inspection of certain kinds of food, etc., lies in the fact that government may properly interfere to prevent abuses in those special cases where it is impossible, or at least difficult, for the buyer of goods to verify their character for himself. Inspection of

factories is justifiable, for the purpose of thereby protecting the health and morals of large masses of the people who labor in them, and who, as experience has shown, are unable to protect themselves. The work is a most able treatment of the question as to how far it is proper to interfere in the general industrial department of the country. It is needless to say that such a law as is under consideration here does not fall under any of the conditions in which State interference is regarded as proper. But it was during the times when laws such as I have above alluded to were in force that Lord Hale lived and wrote. He was, without doubt, a very great lawyer, but he wrote regarding the law as it then existed, and when views of governmental interference with the private concerns of individuals were carried to the greatest extent, and he was naturally and necessarily affected by the atmosphere of the times in which he lived; and his views as to the policy and propriety of laws involving an interference with the private concerns of the subject were, of course, colored by the general ideas as to the proper function of government then existing. This great magistrate, it will be remembered, was a firm believer in the existence of witchcraft, and presided at the trials of old women accused of such crime, and condemned them to death on conviction thereof. I do not mention this as any evidence against the ability, integrity or learning of this upright man and able lawyer; but it is entirely conclusive of the truth of the statement that all men, however great and however honest, are almost necessarily affected by the general belief of their times, and that Lord Hale was not one of the few exceptions to this rule. I have spoken thus somewhat at length upon this subject, not for the purpose of attempting to show the incorrectness of the rule laid down by Lord Hale regarding common carriers, innkeepers, wharfingers, etc., who were, at the same time, nothing but private individuals, having no privilege from the State, but I have thus spoken for the purpose of showing that because the rule is correctly stated in those cases no reason exists in such fact for the extension of the principle of that rule to other cases, and, by doing so, go back to the seventeenth or eighteenth century ideas of paternal government, and thereby wholly ignore the later, and, as we firmly believe, the more correct, ideas which an increase of civilization and a fuller knowledge of the fundamental laws of political economy, and a truer conception of the proper functions of government, have given us at the present day. Rights which we would now regard as secured to us by our Bill of Rights against all assaults, from whatever quarter, were in those days regarded as the proper subjects of legislative interference and suppression. The fact that certain rules of the common law have come down to us unimpaired, although based upon a view of the relations of government to the people which obtained in the seventeenth century, should certainly furnish no reason for extending those rules to cases which, but for such extension, would be regarded as clearly within the protection of the constitutional limitations contained in our Bill of Rights. I think that no further violation of the general rule of absolute liberty of the individual to contract regarding his own property should be sustained by this court. This violation would have to occur if we should hold legislation of the kind under consideration valid.

Tiedeman, in his work already cited, at the end of section 93, on page 238, in speaking of Lord Hale and his observations, and generally in regard to this power, says: "Lord Hale therefore cannot be cited in support of the doctrine that the State may regulate the prices charged in a business which, from the circumstances, becomes a virtual monopoly. And, even if he did justify such regulations, his opinions can hardly be set up in opposition to the rational prohibition of the American Constitution. By all the known rules

of constitutional construction, the conclusion must be reached that the regulation of prices in such a case is unconstitutional; and, while the common law is still authority for the propriety and justification of laws which antedate the American Constitution, it cannot be cited to defeat the plain meaning of the Constitution in respect to laws subsequently enacted." See also same author, page 588.

Judge Cooley, in his Constitutional Limitations (5th ed.), at page 739, gives four heads under which such regulations are admissible, and such a case as this comes under none of them. He says, in summarizing his own views as to when the property of the citizen could be said to be affected with a public use or interest, so that prices might be limited, that they were in four classes: (1) When the business is one the following of which is not of right, but is permitted by the State as a privilege or franchise; and under this head he includes such cases as lotteries, giving shows, keeping billiard tables for hire, etc. (2) Where the State, ou public grounds, renders to the business special assistance by taxation or otherwise. (3) Where, for the accommodation of business, some special use is allowed to be made of public property or of a public easement. (4) Where exclusive privileges are granted in consideration of some special return to be made to the public. Possibly, he says, there may be other cases. He does not include such a case as this or the Munn Case, though the latter was under criticism in this very deflnition. That learned author, in speaking on this same subject, says, in same volume, pages 737-739: "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 upon himself a public employment, with special privileges, which only the State can confer upon him, the case is clear enough," etc. The case put by Lord Hale of the owner of a private wharf, which was the only one in a new port, being properly subjected to a limitation of his charges, because of an alleged monopoly, is spoken of by Cooley, and explained as grounded upon the use of public property under a license, as the title to the soil under the water in navigable streams is in the sovereign, and its use by a private person upon which to build a wharf is under the license of the crown. Judge Cooley then says, at page 739 of his Constitutional Limitations, as follows: "If, then, by public permission, one is making use of the public property, and he chances to be the only one with whom the public can deal in respect to the use of that property, it seems entirely reasonable to say that his business is affected with a public interest which requires him to deal with the public on reasonable terms." The right arises from the use of the property of the public by the license of the public, or in other words, by the license of the crown, and thus the right of limitation attaches to such user. It does not spring from any assumed monopoly arising simply from convenience of location, or because no others are engaged in the business, but only because of the user of public property by the license of the crown or the people.

There is not the slightest proof in this case that the warehouse is built below low-water mark in the East river, on the Brooklyn side, and so on land the title to which may be in the State. If it be thus built, then, perhaps, the State could compel its removal; but it has done or attempted nothing of the kind, and does not seek to do it by this legislation, nor is there any pre

tense of the limitation of price being placed as a condition of the continued user of the land by the owner of the warehouse. There is no grant of any right by the State, nor of any privilege or franchise, upon which to base a claim of the power to limit the price for the user of the warehouse. Both these able writers whom I have quoted are plainly of the opinion that the Munn Case cannot be upheld as within any branch of the police power, as that power is limited under our constitutional government; and I think that, notwithstanding the great respect which is entertained for the Federal Supreme Court, the doctrines of the Munn Case have never received the unqualified approval of the profession. I think, in order to follow it in these cases, we should have to overturn cases and principles decided in this State after mature deliberation and upon the most impregnable grounds. The Munn Case was published in 16 Am. Law Reg. (N. S.) 526, in 1877. A note is added, at the end of the report, which is entirely adverse to the doctrines of the case, and it is stated that no other court had ever held that a warehouse, situated as was that of the plaintiff in error in that case, was private property which was affected with a public use. A private individual's property was supposed to be affected by a public use, as stated in the note above referred to, when the public had a somewhat greater or less proprietary right therein, as in a public stream over which a person established a ferry, or in the right to a fishery, etc.; and the right to regulate the business of a common carrier, it was thought, might be placed on the ground of the use the carrier made of a public highway, maintained more or less directly by the taxation of the public. Commenting on the Munn Case, it is said in 2 Hare Constitutional Law, 771: "Such legislation may be eminently just as regards companies which have been chartered by the State or clothed with the power of eminent domain, because grants of this description not infrequently preclude the competition which is the security against overcharge in trade, but seems questionable when the way is left open to individual enterprise," etc. There is some evidence, also, that the decision in the Munn Case has not been accepted without criticism by lawyers, even in the land from which we derive our common law, upon the principles of which the learned chief justice claimed to rest it. Mr. Bryce, one of the most accomplished of English lawyers and statesmen, and the author of the late great work on the American Commonwealth, thinks that the decision was, perhaps more the effect of public opinion in its action upon the court than of a strict adherence to legal principles; and while, as he says, not presuming to question its correctness, yet adds that it evidently represents a different view of the sacredness of private rights, and of the powers of the Legislature, from that entertained by Chief Justice Marshall and his associates. See volume 1, two-volume Ed. 267; three-volume Ed. 365. Upon the question of what is meant by the expressions" public use" and "virtual monopoly," when, found in the cases upon the subject under consideration, that of Allnut v. Inglis, 12 East, 527, is a most instructive one. The defendants were the owners of certain London docks, and they had received from Parliament the right to store foreign wines in their warehouses connected with such docks, in bond, until their sale and the payment of duties thereon. This license was, at that time, exclusive, as one but the owners of these docks had the right to receive the wines on storage. This gave the importers of such wines the legal right to resort to the docks and warehouses for unloading and storing, and hence the court held that their owners had devoted them to a public use. The court said that "if the crown should hereafter think it advisable to extend the privilege [of warehousing these foreign wines in bond] more generally to other persons and places, so far as that the public

will not be restrained from exercising a choice of warehouses for the purpose, the company may be enfranchised from the restriction which attaches upon a monopoly," etc. And Ellenborough, C. J., said there is no doubt that the general principle is favored, both in law and justice, that every man may fix what price he pleases upon his own property, or the use of it; but if for a particular purpose the public have a right to resort to his premises, and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly he must, as an equivalent, perform the duty attached to it on reasonable terms. It is seen that this was a case where Parliament, in the first place, granted a monopoly, and, as a consequence of an acceptance thereof by defendants, the public had a right to resort to the warehouse for the purpose of storing the wines in bond; and, by thus accepting the monopoly, the defendants dedicated their property to a quasi public use, because the public, by virtue of such monopoly and for such purpose, had the right to resort to their warehouses, and to demand the storage of the wines. The facts of the case must be taken into account whenever expressions are used of a somewhat general nature; and it is evident that when the English judges and courts spoke of an owner of property devoting it to a public use, or one in which the public had an interest, they meant that by reason of such devotion the public thereafter had a right to resort to the place where the property was, and a legal right to demand its use on payment of a reasonable compensation. And the cases they were discussing, and in which they made use of the term "virtual monopoly," and where they held the owners had devoted their property to a public use, were cases where such owners were receiving from the government some special privilege or franchise, by accepting which they did thereby so devote their property. Unless the public had that right of resort and that right of user upon payment of such compensation, there was no devotion of the property to a public use within the meaning of this expression, which, ex vi termini, means a devotion to the public use to such an extent that the public thereby has a legal right to resort to the premises, and to demand such use upon payment or tender of reasonable compensation.

The case of Bolt v. Stennett, 8 Term R. 606, is an illustration of the same principle. The crane was set up by its owners on a public quay (either by the express or implied license of the government), to which the public had the right to resort for the purpose of loading and unloading vessels, and, being so set up and under such circumstances that the public had the right to make use of it, the compensation therefore was properly limited to a reasonable sum. In this State neither the amount of work done by the owner for the public in the use of his property, nor the numbers of the public who use it, nor the convenience of situation of the property, nor all combined, make the use a public one, within the meaning of the term as used in this discussion. Where the owner of property holds himself out to the public as the common servitor thereof, as in the case of a common carrier or innkeeper or wharfinger (which, as I have said, are ancient exceptions to the general rule), or where he has received some privilege or franchise from the government, then he has granted to the public an interest in his property as to its use, or he accepts the privilege or franchise upon such conditions as the government may annex to its exercise. And when he opens his premises to and invites the public generally to repair to them for the purpose of a resort for some kind of public entertainment or amusement, then he, for the time being at least, brings such property within the exercise of the police power as applied to regulations for the public health or morals, as in the late case of People v. King, 110 N. Y. 418, already cited. Even the law referred to