27 (28: 923); Soon Hing v. Crowley, 113 U. S. | vating, receiving, weighing, and discharging
703 (28: 1145); State v. Burgoyne, 7 Lea, 173,
40 Am. Rep. 60.

The leading decisions of this court which touch the questions involved in the cases at bar sustain the constitutionality of this Act.

Munn v. Illinois, 94 U. S. 113 (24: 77); Peik v. Chicago & N. W. R. Co. 94 U. S. 176 (24: 98); Dow v. Beidelman, 125 U. S. 688 (31: 843); Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 455 (33: 979).

The law in question is valid as an Act regulating commerce on the waters of the State.

Munn v. Illinois, 94 U. S. 135 (24: 87); Coo-
ley v. Board of Wardens, 53 U. S. 12 How. 299
(13: 996); Ex parte McNeil, 80 U. S. 13 Wall.
236 (20: 624); Wilson v. McNamee, 102 U. S.
572 (26: 234); Fitch v. Livingston, 4 Sandf.
492.

A statute to be held unconstitutional must
be plainly at war with the fundamental law.
People v. Terry, 10 Cent. Rep. 460, 108 N. Y. 1.
Every presumption is in favor of the validity
of an enactment of the state Legislature.
People v. Comstock, 78 N. Y. 356; Re Gilbert
Elev. R. Co. v. Handerson, 70 N. Y. 361, 367;
People v. Briggs, 50 N. Y. 535; Butchers U.
Co. v. Crescent City Co. 111 U. S. 746 (28: 585).

Mr. Justice Blatchford delivered the opinion of the court:

grain into and from a stationary elevator and
warehouse, contrary to the provisions of said
statute, came on for trial before a criminal
term of the superior court of Buffalo, Erie
county.

The charge in the indictment was, that
Budd, at Buffalo, on the 19th of September,
1888, being manager of the Wells elevator,
which was an elevator and warehouse for re-
ceiving and discharging grain in the city of
Buffalo, that city being a municipal corpora-
tion duly organized in pursuance of the laws
of the State of New York and having a popu-
lation of upwards of 130,000 people, did re-
ceive, elevate and weigh from the propeller
called the Oceanica, the property of the Lehigh
Valley Transportation Company, a body cor-
porate, 51,000 bushels of grain and corn, the
property of said company, into the said Wells
elevator, and unlawfully exacted from said
company, for elevating, receiving, weighing
and discharging said grain and corn, the sum
of one cent a bushel, and also exacted from
said company, for shoveling to the leg of the
elevator, in the unloading of said 51,000 bush-
els of grain and corn, $1.75 for every 1,000
bushels thereof, over and above the actual cost
of such shoveling.

The facts set forth in the indictment were proved, and the defendant's counsel requested the court to instruct the jury to render a ver dict of acquittal, on the ground that the prosecution was founded on a statute which was in conflict both with the Constitution of the United States and with that of the State of New York; that the services rendered by Budd, for which the statute assumed to fix a price, were not public in their nature; that neither the persons rendering them, nor the elevator in question had received any privilege from the Legislature; and that such elevator was not a public warehouse and received no license. The court declined to direct a verdict of acquittal, and the defendant excepted.

On the 9th of June, 1888, the governor of the State of New York approved an Act, chapter 581 of the laws of New York of 1888, which had been passed by the two houses of the Legislature, three fifths being present, entitled "An Act to Regulate the Fees and Charges for Elevating, Trimming, Receiving, Weighing and Discharging Grain by Means of Floating and Stationary Elevators and Warehouses in this State." The Act was in these words: "Section 1. The maximum charge for elevating, receiving, weighing and discharging [518] grain by means of floating and stationary elevators and warehouses in this State shall not exceed the following rates, namely: For ele- The court charged the jury that it was vating, receiving, weighing and discharging claimed by the prosecution that the defendant grain, five eighths of one cent a bushel. In had violated the statute in charging more than the process of handling grain by means of five eighths of one cent a bushel for elevating, floating and stationary elevators, the lake ves- receiving, weighing and discharging the grain sels or propellers, the ocean vessels or steam- and in charging more than the actual cost of ships, and canal boats, shall only be required trimming or shoveling to the leg of the elevato pay the actual cost of trimming or shovel-tor, in unloading the propeller; that the statute ing to the leg of the elevator when unloading, nd trimming cargo when loading. 2. Any person or persons violating the provisions of this Act shall, upon conviction thereof, be adjudged guilty of a misdemeanor, and be punished by a fine of not less than two hundred and fifty dollars and costs thereof. § 3. Any person injured by the violation of the provisions of this Act may sue for and recover any damages he may sustain against any person or persons violating said provisions. 4. This Act shall not apply to any village, town or city having less than one hundred and thirty thousand population. § 5. This Act shall take effect immediately."

On the 26th of November, 1888, an indictment, which had been found by the grand jury of Erie county, New York, in the court of sessions of that county, against J. Talman Budd, for charging and receiving fees for ele

was constitutional; and that the jury should
find the defendant guilty as charged in the in-
dictment, if they believed the facts which had
been adduced. The defendant excepted to
that part of the charge which instructed the
jury that they might find the defendant guilty
of exacting an excessive rate for shoveling to
the leg of the elevator, and also to that part
which instructed the jury that they might con-
vict the defendant for having exacted an ex-
cessive rate for elevating, receiving, weighing
and discharging the grain and corn.

The jury brought in a verdict of guilty as
charged in the indictment, and the court sen-
tenced the defendant to pay a fine of $250, and,
in default thereof, to stand committed to the
common jail of Erie County for a period not
exceeding one day for each dollar of said fine.
The defendant appealed from that judgment
to the general term of the superior court of

[519]

[520]

[521]

Buffalo, which affirmed the judgment. He|
then appealed to the Court of Appeals of New
York, which affirmed the judgment of the su-
perior court of Buffalo; and the latter court
afterwards entered a judgment making the
judgment of the Court of Appeals its judg-
ment. The defendant then sued out from this
court a writ of error directed to the superior
court of Buffalo.

The opinion of the Court of Appeals is re-
ported in 117 N. Y. 1, 5 L. R. A. 559. It was
delivered by Judge Andrews, with whom Chief
Judge Ruger and Judges Earl, Danforth, and
Finch concurred. Judges Peckham and Gray
dissented, Judge Gray giving a dissenting opin-
ion, and Judge Peckham adhering to the dis-
senting opinion which he gave in the case of
People v. Walsh, 117 N. Y. 31

The main question involved in these cases is whether this court will adhere to its decision in Munn v. Illinois, 94 U. S. 113, [24: 77].

The Court of Appeals of New York, in People v. Budd, 117 N. Y. 1, 5 L. R. A. 559, held that chapter 581 of the laws of 1888 did not violate the constitutional guarantee protecting private property, but was a legitimate exercise of the police power of the State over a business affected with a public interest. In regard to the indictment against Budd, it held that the charge of exacting more than the statute rate for elevating was proved, and that as to the alleged overcharge for shoveling, it appeared that the carrier was compelled to pay $4 for each 1,000 bushels of grain, which was the charge of the shovelers' union, by which the work was performed, and that the union paid the elevator, for the use of the latter's steam shovel, $1.75 for each 1,000 bushels. The court held that there was no error in submitting to the jury the question as to the overcharge for shoveling; that the intention of the statute was to confine the charge to the "*actual cost" of the outside labor required; and that a violation of the Act in that particular was proved; but that, as the verdict and sentence were justified by proof of the overcharge for elevating, even if the alleged overcharge for shoveling was not made out, the ruling of the superior court of Buffalo could not have prejudiced Budd. Of course, this court, in these cases, can consider only the Federal questions involved.

On the 22d of June, 1888, complaint on oath was made before Andrew Walsh, a police justice of the city of Brooklyn, New York, that on the preceding day one Edward Annan, a resident of that city, had violated_the_provisions of chapter 581 of the laws of New York of 1888, by exacting from the complainant more than five eighths of one cent per bushel for elevating, weighing, receiving, and discharging a boat load of grain from a canal boat to an ocean steamer, and by exacting from the canal boat and its owner more than the actual cost of trimming or shoveling to the leg of the elevator, and by charging against the ocean steamer Lore than the actual cost of trimming the cargo, the services being rendered by a floating elevator of which Annan was part It is claimed, on behalf of Budd, that the owner and one of the agents. On this com- statute of the State of New York is unconstiplaint, Annan was arrested and brought be tutional, because contrary to the provisions of fore the police justice, who took testimony in section 1 of the 14th Amendment to the Conthe case and committed Annan to the custody stitution of the United States, in depriving the of the sheriff of the county of Kings, to an- citizen of his property without due process of swer the charge before a court of special ses- law; that it is unconstitutional in fixing the sions in the city of Brooklyn. Thereupon, maximum charge for elevating, receiving, writs of habeas corpus and certiorari were weighing and discharging grain by means of granted by the Supreme Court of the State of floating and stationary elevators and ware New York, on the application of Annan, re- houses at five eighths of one cent a bushel, and turnable before the general term of that court in forbidding the citizen to make any profit in the first instance; but on a hearing thereon, upon the use of his property or labor; and that the writs were dismissed and Annan was re- the police power of the State extends only to manded to the custody of the sheriff. The property or business which is devoted by its opinion of the general term is reported in 50 owner to the public, by a grant to the public Hun, 413. Annan appealed to the Court of of the right to demand its use. It is claimed Appeals, which affirmed the order of the gen-on behalf of Annan and Pinto that floating eral term (117 N. Y. 621), for the reasons set forth in the opinion in the case of Budd (117 N. Y. 1, 5 L. R. A. 559) and the judgment of the Court of Appeals was afterwards made the judgment of the Supreme Court. Annan sued out a writ of error from this court, directed to the Supreme Court of the State of New York. Like proceedings to the foregoing were had in the case of one Francis E. Pinto, the charge against him being that he had exacted from the complainant more thau five eighths of one cent per bushel for receiving and weighing a cargo of grain from a boat into the Pinto stores, of which he was lessee and manager, the same being a stationary grain elevator on land in the city of Brooklyn, New York, and had exacted more than the actual cost of trimming or shoveling to the leg of the elevator. Pinto sued out from this court a writ of error to the Supreme Court of the State of New York.

and stationary elevators in the port of New York are private property, not affected with any public interest, and not subject to the reg ulation of rates.

“Trimming” in the canal boat, spoken of in the statute, is shoveling the grain from one place to another, and is done by longshoremen with scoops or shovels; and "trimming" the ship's cargo when loading is stowing it and securing it for the voyage. Floating elevators are primarily boats. Some are scows, and have to be towed from place to place by steam tugs; but the majority are propellers. When the floating elevator arrives at the ship and makes fast alongside of her, the canal boat carrying the grain is made fast on the other side of the elevator. A long wooden tube, called "the leg of the elevator," and spoken of in the statute, is lowered from the tower of the ele vator so that its lower end enters the hold of the canal boat in the midst of the grain. The

52

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[531]

"spout" of the elevator is lowered into the
ship's hold. The machinery of the elevator is
then set in motion, the grain is elevated out of
the canal boat, received and weighed in the
elevator, and discharged into the ship. The
grain is lifted in "buckets" fastened to an end
less belt which moves up and down in the leg
of the elevator. The lower end of the leg is
buried in the grain so that the buckets are sub-
merged in it. As the belt moves, each bucket
goes up full of grain, and at the upper end of
the leg, in the elevator tower, empties its con-
tents into the hopper which receives the grain.
The operation would cease unless the grain
was trimmed or shoveled to the leg as fast as
it is carried up by the buckets. There is a
gang of longshoremen who shovel the grain
from all parts of the hold of the canal boat to
"the leg of the elevator," so that the buckets
may be always covered with grain at the low-
er end of the leg. This "trimming or shovel-
ing to the leg of the elevator," when the canal
boat is unloading is that part of the work
which the elevator owner is required to do at
the "actual cost."

ness of elevating and storing grain, many years
prior to the passage of the Act in question, and
prior also to the adoption of the amendment to
the constitution of Illinois, in 1870, declaring all
elevators and warehouses where grain or other
property is stored for a compensation, to be pub-
lic warehouses. The Court of Appeals then
cited the cases of People v. Boston & A. R. Co.
70 N. Y. 569; Bertholf v. O'Reilly, 74 N. Y. 509;
Buffalo E. S. R. Co. v. Buffalo St. R. Co. 111
N. Y. 132, 2 L. R. A. 384; and People v. King,
110 N. Y. 418, 1 L. R. A. 293, as cases in
which Munn v. Illinois had been referred to
by it, and said that it could not overrule and
disregard Munn v. Illinois without subverting
the principle of its own decision in People v.
King, and certainly not without disregarding
many of its deliberate expressions in approval
of the principle of Munn v. Illinois.

The Court of Appeals further examined the
question whether the power of the Legislature
to regulate the charge for elevating grain,
where the business was carried on by individ-
uals upon their own premises, fell within the
scope of the police power, and whether the
In the Budd and Pinto cases, the elevator statute in question was necessary for the public
was a stationary one on land; and in the Annan welfare. It affirmed that, while no general
case, it was a floating elevator. In the Budd power resided in the Legislature to regulate
case, the Court of Appeals held that the words private business, prescribe the conditions under
"actual cost," used in the statute, were intend- which it should be conducted, fix the price of
ed to exclude any charge by the elevator be- commodities or services, or interfere with free-
yond be sum specified, for the use of its ma-dom of contract, and while the merchant, man-
chinery na shoveling, and the ordinary ex-ufacturer, artisan, and laborer, under our sys
penses of operating it, and to confine the tem of government, are left to pursue and
charge to the actual cost of the outside labor
required for trimming and bringing the grain
to the leg of the elevator: and that the purpose
of the statute could be easily evaded and de-
feated if the elevator owner were permitted to
separate the services and charge for the use of
the steam shovel any sum which might be
agreed upon between him and the shovelers'
union, and thereby, under color of charging
for the use of his steam shovel, exact from the
carrier a sum for elevating beyond the rate
fixed therefor by the statute.

The Court of Appeals, in its opinion in the Budd case, considered fully the question as to whether the Legislature had power, under the constitution of the State of New York, to prescribe a maximum charge for elevating grain by stationary elevators, owned by individuals or corporations who had appropriated their property to that use and were engaged in that business; and it answered the inquiry in the affirmative. It also reviewed the case of Munn v. Illinois, 94 U. S. 113 [24: 77], and arrived at the conclusion that this court there held that the legislation question in that case was a lawful exercise of legislative power, and did not infringe that clause of the 14th Amendment to the Constitution of the United States which provides that no State shall "deprive any person of life, liberty, or property without due process of law;" and that the legislation in question in that case was similar to, and not distinguishable in principle from, the Act of the State of New York.

In regard to Munn v. Illinois, the Court of Appeals said that the question in that case was raised by an individual owning an elevator and warehouse in Chicago, erected for, and in connection with which he had carried on, the busi

provide for their own interests in their own
way, untrammeled by burdensome and re-
strictive regulations, which, however common
in rude and irregular times, are inconsistent
with constitutional liberty, yet there might be
special conditions and circumstances which
brought the business of elevating grain within
principles which, by the common law and the
practice of free governments, justified legisla
tive control and regulation in the particular
case, so that the statute would be constitution-
al; that the control which, by common law
and by statute, was exercised over common
carriers, was conclusive upon the point that
the right of the Legislature to regulate the
charges for services in connection with the use
of property did not depend in every case upon
the question whether there was a legal monop-
oly, or whether special governmental privileges
or protection had been bestowed; that there
were elements of publicity in the business of
elevating grain which peculiarly affected it
with a public interest; that those elements
were found in the nature and extent of the
business, its relation to the commerce of the
State and country, and the practical monopoly
enjoyed by those engaged in it; that about
120,000,000 bushels of grain come annually to
Buffalo from the west; that the business of
elevating grain at Buffalo is connected mainly
with lake and canal transportation; that the
grain received at New York in 1887 by way of
the Erie canal and Hudson river, during the
season of canal navigation, exceeded 46,000,000
bushels, an amount very largely in excess of
the grain received during the same period by
rail and by river and coast wise vessels; that the
elevation of that grain from lake vessels to
canal boats takes place at Buffalo, where there

[532]

[533]

[534]

or prejudice, or whatever aberrations might
have marked its course.

We regard these views, which we have re-
ferred to as announced by the Court of Appeals
of New York, so far as they support the
validity of the statute in question, as sound and
just.

are thirty or forty elevators, stationary and
floating; that a large proportion of the surplus
cereals of the country passes through the ele-
vators at Buffalo and finds its way through the
Erie canal and Hudson river to the seaboard
at New York, whence it is distributed to the
markets of the world; that the business of ele-
vating grain is an incident to the business of
transportation, the elevators being indispensanois, adopted in 1870, provided in article 13,
ble instrumentalities in the business of the
common carrier, and in a broad sense perform-
ing the work of carriers, being located upon or
adjacent to the waters of the State, and trans-
ferring the cargoes of grain from the lake ves-
sels to the canal boats, or from the canal boats
to the ocean vessels, and thereby performing
an essential service in transportation; that by
their means the transportation of grain by
water from the upper lakes to the seaboard is
rendered possible; that the business of elevat-
ing grain thus has a vital relation to commerce
in one of its most important aspects; that every
excessive charge made in the course of the
transportation of grain is a tax upon commerce;
that the public has a deep interest that no ex-
orbitant charges shall be exacted at any point,
upon the business of transportation; and that
whatever impaired the usefulness of the Erie
canal as a highway of commerce involved the
public interest.

In Munn v. Illinois, the Constitution of Illisection 1, as follows: "All elevators or storehouses, where grain or other property is stored for a compensation, whether the property stored be kept separated or not, are declared to be public warehouses;" and the Act of the Legislature of Illinois approved April 25, 1871, (Public Laws of Illinois, of 1871-72, p. 762,) divided public warehouses into three classes, prescribed the taking of a license and the giving of a bond, and fixed a maximum charge, for warehouses belonging to class A, for storing and handling grain, including the cost of receiving and delivering, and imposed a fine on conviction for not taking the license or not giving the bond. Munn and Scott were indicted, convicted, and fined for not taking out the license and not giving the bond, and for charging rates for storing and handling grain higher than those established by the Act. Section 6 of the Act provided that it should be the duty of every warehouseman of class A to receive for storage any grain that might be tendered to him. Munn and Scott were the managers and lessees of a public warehouse, such as was named in the statute. The Supreme Court of Illinois having affirmed the judgment of conviction against them, on the ground that the statute of Illinois was a valid and constitutional enactment (Munn v. People, 69 Ill. 80,) they sued out a writ of error from this court, and contended that the provisions of the sections of the statute of Illinois which they were charged with having violated were repugnant to the third clause of § 8 of article 1, and the sixth clause of 9 of article 1, of the Constitution of the United States, and to the 5th and 14th Amendments of that Consti

The Court of Appeals said that, in view of
the foregoing exceptional circumstances, the
business of elevating grain was affected with a
public interest, within the language of Lord
Chief Justice Hale, in his treatise De Portibus
Maris (Harg. Law Tracts, 78); that the case
fell within the principle which permitted the
Legislature to regulate the business of common
carriers, ferrymen and hackmen, and interest
on the use of money; that the underlying prin-
ciple was, that business of certain kinds holds
such a peculiar relation to the public interest
that there is superinduced upon it the right of
public regulation; and that the court rested the
power of the Legislature to control and regulate
elevator charges upon the nature and extent of
the business, the existence of a virtual monop-tution.
oly, the benefit derived from the Erie canal's
creating the business and making it possible,
the interest to trade and commerce, the relation
of the business to the property and welfare of
the State, and the practice of legislation in an-
alogous cases, collectively creating an excep-
tional case and justifying legislative regula-
tion.

This court, in Munn v. Illinois, the opinion
being delivered by Chief Justice Waite, and
there being a published dissent by only two
justices, considered carefully the question of
the repugnancy of the Illinois statute to the
14th Amendment. It said, that under the
powers of government inherent in every sover-
eignty, "the government regulates the conduct
The opinion further said that the criticism of its citizens one towards another, and the
to which the case of Munn v. Illinois had been manner in which each shall use his own prop-
subjected proceeded mainly upon a limited erty, when such regulation becomes necessary
and strict construction and definition of the for the public good;" and that, "in their ex-
police power; that there was little reason, unercise it has been customary in England from
der our system of government, for placing a time immemorial, and in this country from its
close and narrow interpretation on the police first colonization, to regulate ferries, common
power, or restricting its scope so as to hamper carriers, hack men, bakers, millers, wharfin-
the legislative power in dealing with the vary-gers, inn-keepers, etc., and in so doing to fix
ing necessities of society and the new circuma maximum of charge to be made for services
stances as they arise calling for legislative in
tervention in the public interest; and that no
serious invasion of constitutional guarantees
by the Legislature could withstand for a long
time the searching influence of public opinion,
which was sure to come sooner or later to the
side of law, order, and justice, however it
might have been swayed for a time by passion

rendered, accommodations furnished, and ar
ticles sold." It was added: "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." It announced as its

[535]