ERROR to the Supreme Court of the State of Illinois.
The Constitution of Illinois, adopted in 1870, contains the following in reference to the inspection of grain, and the storage thereof in public warehouses:--
'SECTION 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.
'SECT. 2. The owner, lessee, or manager of each and every public warehouse situated in any town or city of not less than one hundred thousand inhabitants, shall make weekly statements under oath before some officer designated by law, and keep the same posted in some conspicuous place in the office of such warehouse; and shall also file a copy for public examination in such place as shall be designated by law, which statement shall correctly set forth the amount and grade of each and every kind of grain in such warehouse, together with such other property as may be stored therein, and what warehouse receipts have been issued, and are, at the time of making such statement, outstanding therefor; and shall, on the copy posted in the warehouse, note daily such changes as may be made in the quantity and grade of grain in such warehouse; and the different grades of grain shipped in separate lots shall not be mixed with inferior or superior grades, without the consent of the owner or consignor thereof.
'SECT. 3. The owners of property stored in any warehouse, or holder of a receipt for the same, shall always be at liberty to examine such property stored, and all the books and records of the warehouse in regard to such property.
'SECT. 4. All railroad companies, and other common carriers on railroads, shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsible for the delivery of such amount to the owner or consignee thereof, at the place of destination.
'SECT. 5. All railroad companies receiving and transporting grain, in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it may be consigned, provided such consignee, or the elevator, or public warehouse, can be reached by any track owned, leased, or used, or which can be used, by such railroad company; and all railroad companies shall permit connections to be made with their tracks, so that any such consignee, and any public warehouse, coal-bank, or coal-yard may be reached by the cars on said railroad.
'SECT. 6. It shall be the duty of the general assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give full effect to this article of the Constitution, which shall be liberally construed, so as to protect producers and shippers. And the enumeration of the remedies herein named shall not be construed to deny to the general assembly the power to prescribe by law such other and further remedies as may be found expedient, or to deprive any person of existing common-law remedies.
'SECT. 7. The general assembly shall pass laws for the inspection of grain, for the protection of producers, shippers, and receivers of grain and produce.'
The provisions of the act of the general assembly of Illinois, entitled 'An Act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to art. 13 of the Constitution of this State,' approved April 25, 1871, so far as the same have any direct bearing upon the questions involved in this case, are as follows:--
'SECTION 1. Be it enacted by the people of the State of Illinois, represented in the general assembly, that public warehouses, as defined in art. 13 of the Constitution of this State, shall be divided into three classes, to be designated as classes A, B, and C, respectively.
'SECT. 2. Public warehouses of class A shall embrace all warehouses, elevators, or granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved, such warehouses, elevators, or granaries, being located in cities having not less than one hundred thousand inhabitants. Public warehouses of class B shall embrace all other warehouses, elevators, or granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together. Public warehouses of class C shall embrace all other warehouses or places where property of any kind is stored for a consideration.
'SECT. 3. The proprietor, lessee, or manager of any public warehouse of class A shall be required, before transacting any business in such warehouse, to procure from the Circuit Court of the county a license, permitting such proprietor, lessee, or manager to transact business as a public warehouseman under the laws of this State, which license shall be issued by the clerk of said court upon a written application, which shall set forth the location and name of such warehouse, and the individual name of each person interested as owner or principal in the management of the same, or, if the warehouse be owned or managed by a corporation, the names of the president, secretary, and treasurer of such corporation shall be stated; and the license shall give authority to carry on and conduct the business of a public warehouse of class A in accordance with the laws of this State, and shall be revocable by the said court upon a summary proceeding before the court, upon complaint of any person in writing setting forth the particular violation of law, and upon satisfactory proof to be taken in such manner as may be directed by the court.
'SECT. 4. The person receiving a license as herein provided shall file, with the clerk of the court granting the same, a bond to the people of the State of Illinois, with good and sufficient surety, to be approved by said court, in the penal sum of $10,000, conditioned for the faithful performance of his duty as a public warehouseman of class A, and the full and unreserved compliance with all laws of this State in relation thereto.
'SECT. 5. Any person who shall transact the business of a public warehouse of class A without first procuring a license as herein provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse), shall, on conviction, be fined in a sum not less than $100 for each and every day such business is so carried on; and the court may refuse to renew any license, or grant a new one to any of the persons whose license has been revoked, within one year from the time the same was revoked.'
'SECT. 15. Every warehouseman of public warehouses of class A shall be required, during the first week of January of each year, to publish in one or more of the newspapers (daily, if there be such) published in the city in which such warehouse is situated, a table or schedule of rates for the storage of grain in the warehouse during the ensuing year, which rates shall not be increased (except as provided for in sect. 16 of this act) during the year; and such published rates, or any published reduction of them, shall apply to all grain received into such warehouse from any person or source; and no discrimination shall be made, directly or indirectly, for or against any charges made by such warehouseman for the storage of grain.
'The maximum charge of storage and handling of grain, including the cost of receiving and delivering, shall be for the first thirty days or part thereof two cents per bushel, and for each fifteen days or part thereof, after the first thirty days, one-half of one cent per bushel; provided, however, that grain damp or liable to early damage, as indicated by its inspection when received, may be subject to two cents per bushel storage for the first ten days, and for each additional five days or part thereof, not exceeding one-half of one per cent per bushel.'
On the twenty-ninth day of June, 1872, an information was filed in the Criminal Court of Cook County, Ill., against Munn & Scott, alleging that they were, on the twenty-eighth day of June, 1872, in the city of Chicago, in said county, the managers and lessees of a public warehouse, known as the 'North-western Elevator,' in which they then and there stored grain in bulk, and mixed the grain of different owners together in said warehouse; that the warehouse was located in the city of Chicago, which contained more than one hundred thousand inhabitants; that they unlawfully transacted the business of public warehousemen, as aforesaid, without procuring a license from the Circuit Court of said county, permitting them to transact business as public warehousemen, under the laws of the State.
To this information a plea of not guilty was interposed.
From an agreed statement of facts, made of the record, it appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the 'North-western Elevator,' and erected thereon the grain warehouse or elevator in that year, with their own capital and means; that they ever since carried on, in said elevator, the business of storing and handling grain for hire, for which they charged and received, as a compensation, the rates of storage which had been, from year to year, agreed upon and established by the different elevators and warehouses in the city of Chicago, and published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication. On the twenty-eighth day of June, 1872, Munn & Scott were the managers and proprietors of the grain warehouse known as 'The North-western Elevator,' in Chicago, Ill., wherein grain of different owners was stored in bulk and mixed together; and they then and there carried on the business of receiving, storing, and delivering grain for hire, without having taken a license from the Circuit Court of Cook County, permitting them, as managers, to transact business as public warehousemen, and without having filed with the clerk of the Circuit Court a bond to the people of the State of Illinois, as required by sects. 3 and 4 of the act of April 25, 1871. The city of Chicago then, and for more than two years before, had more than one hundred thousand inhabitants. Munn & Scott had stored and mixed grain of different owners together, only by and with the express consent and permission of such owners, or of the consignee of such grain, they having agreed that the compensation should be the published rates of storage.
Munn & Scott had complied in all respects with said act, except in two particulars: first, that had not taken out a license, nor given a bond, as required by sects. 3 and 4; and, second, they had charged for storage and handling grain the rates established and published in January, 1872, which were higher than those fixed by sect. 15.
The defendants were found guilty, and fined $100.
The judgment of the Criminal Court of Cook County having been affirmed by the Supreme Court of the State, Munn & Scott sued out this writ, and assign for error:--
1. Sects. 3, 4, 5, and 15 of the statute are unconstitutional and void.
2. Said sections are repugnant to the third clause of sect. 8 of art. 1, and the sixth clause of sect. 9, art. 1, of the Constitution of the United States, and to the Fifth and [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]s.
Mr. W. C. Goudy, with whom was Mr. John N. Jewett, for the plaintiffs in error.
The plaintiffs in error could not safely take a license and give a bond, as required by sects. 3 and 4 of the act, because they would thereby waive the right to question the validity of the act. Cooley on Const. Lim. 181; Baker v. Braman, 6 Hill, 511; Ferguson v. Landrum, 1 Bush (Ky.), 548; Home Ins. Co. v. Security Ins. Co., 23 Wis. 171.
1. The third, fourth, fifth, and fifteenth sections of the act, under which the plaintiffs in error were convicted and fined, are repugnant to the third clause, § 8, art. 1, of the Constitution of the United States, which confers upon Congress power to regulate commerce with foreign nations and among the several States. Ward v. Maryland, 12 Wall. 418; Case of the State Freight Tax, 15 id. 232; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Osborne v. Mobile, 16 Wall. 479; Woodruff v. Parham, 8 id. 123; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; City of New York v. Miln, 11 Pet. 102.
2. These sections are also repugnant to the sixth clause of sect. 9, art. 1, of the Constitution, which ordains that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.
3. They are also repugnant to that part of the first section of art. 14 of the amendments to the Constitution of the United States which 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: 5 Webster's Works, 487; Coke's Inst. 46-50; Murray's Lessee v. Hoboken Land and Imp. Co., 18 How. 272; Hoke v. Henderson, 4 Dev. (N. C.) 15; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 393; Cooley on Const. Lim. 351 et seq.; Pumpelly v. Green Bay Co., 13 Wall. 166; Sinnickson v. Johnson, 2 Harr. (N. J.) 129; Gardner v. Newburgh, 2 Johns. Ch. 162; also cases cited in note, 13 Wall. 179; Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; Cooley on Const. Lim. 290; Walker v. Whitehead, 16 Wall. 314; Rowley v. Hooker, 21 Ind. 144; Ogden v. Saunders, 12 Wheat. 259; Willard v. Longstreet, 2 Doug. (Mich.) 172; Gantly's Lessee v. Ewing, 3 How. 707; and are not within the limits of the police power of the State: 4 Black. Com. 162; Bentham (Edin. ed.), part ix. 157; Cooley on Const. Lim. 572, 577; Thorpe v. I. & M. Railroad Co., 27 Vt. 149; Com. v. Alger, 7 Cush. 84; 2 Kent, Com. 340; People v. I. & M. Railroad Co., 9 Mich. 307; Lake View v. Rosehill Cem. Co., 6 Chicago Legal News, 120; Benson v. Mayor, 10 Barb. 245; Vanderbilt v. Adams, 7 Cow. (N. Y.) 449; Broom's Legal Maxims, 357.
They do not regulate the use of property for the future, but deprive the plaintiffs in error of property in existence, and used by them for years prior to the passage of the law. Wynehamer v. People, 13 N. Y. 378; Com. v. Alger, 7 Cush. (Mass.) 84; Bartemeyer v. Iowa, 18 Wall. 129.
The following authorities are directly in point against the exercise of such power: Cooley on Const. Lim. 393; Doe ex dem. Gaines v. Buford, 1 Dana (Ky.), 490; Webb v. Baird, 6 Ind. 17; and the examples of legislation in regard to usury, ferries, mills, hackmen, &c., are not precedents justifying it: 7 Bac. Abr. 188 (ed. 1807); Angell on Highways, §§ 47, 48; Birset v. Hart, Willes, 508; Mills v. County of St Clair, Mills v. County of St Clair, 23 Ill. 369; 15 Vin. Abr. 398; Hix v. Gardner, Bulst. 195.
The sections in question are repugnant to the provision of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]], that no State shall deny to any person within its jurisdiction the equal protection of the laws. Cooley on Const. Lim. 391; Walley's Heirs v. Keenedy, 2 Yerg. (Tenn.) 554.
The provisions of the Constitution of Illinois in regard to warehouses do not affect the questions. Railroad Company v. McClure, 10 Wall. 511; Home of the Friendless v. Rouse, 8 id. 430; The Washington University v. Rouse, id. 439.
Mr. James K. Edsall, Attorney-General of Illinois, contra.
1. The statute is not a regulation of commerce within the purview of the Constitution. Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, id 148; Osborne v. Mobile, 16 id. 479; Nathan v. Louisiana, 8 How. 73; People v. Saratoga & Rens. Railroad Co., 15 Wend. 135; Gibbons v. Ogden, 9 Wheat. 1; Slaughter-House Cases, 16 Wall. 36; Gilman v. Philadelphia, 3 id. 713; City of New York v. Miln, 11 Pet. 102; Crandall v. State of Nevada, 6 Wall. 35; Brown v. Maryland, 12 Wheat. 419; License Cases, 5 How. 504.
2. If the statute is in any sense a regulation of inter-state commerce, it belongs to that class of powers which may be exercised by the State in the absence of conflicting congressional legislation. Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299; Gilman v. Philadelphia, supra; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Crandall v. State of Nevada, supra; License Cases, supra.
3. The statute is not repugnant to that clause of the Constitution which prohibits giving a 'preference to the ports of one State over those of another.' That clause imposes a limitation only upon the powers of Congress.
4. The statute does not deprive persons of their property without due process of law. Cooley on Const. Lim. 541; Slaughter-House Cases, supra; Sharpless v. Mayor of Philadelphia, 27 Pa. St. 166; Grant v. Courter, 24 Barb. (N. Y.) 232; Commonwealth v. Tewksbury, 11 Met. 55; Commonwealth v. Alger, 7 Cush. (Mass.) 84; Met. Board of Police v. Barrett, 34 N. Y. 667; Bartemeyer v. Iowa, 18 Wall. 133.
5. Warehousemen for the storage of grain in the manner the 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. N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Sanford v. Railroad Company, 24 Penn. St. 381; Coggs v. Bernard, 2 Ld. Raym. 909; C. & N. W. Railroad Co. v. The 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. Rev. Stat. of Ill. (of 1874), p. 821, § 101; Ross v. Johnson, 5 Burr. 2827; Low v. Martin, 18 Ill. 288; Steinman v. Wilkins, 7 Watts & S. (Pa.) 466, 468.
Although the ownership of the property is private, the use may be public in a strict, legal sense; hence, in adjudicated cases, the terms 'public wharves,' '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; Ives v. Hartley, 51 Ill. 523; Olcott v. The Supervisors, 16 Wall. 678.
6. Whenever any 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 prevent extortion and an abuse of his position, the price he may charge for his services may be regulated by law. Commonwealth v. Duane, 98 Mass. 1; State v. Perry, 5 Jones (N. C.) L. 252; State v. Nixon, id. 258; Bac. Abr. tit. 'Carriers,' D.; Murray's Lessee et al. v. Hoboken Land and Imp. Co., 18 How. 272; Kirkham v. Shawcrass, 6 T. R. 17; 2 Peake N. P. C. 185; 10 M. & W. 415; Ogden v. Saunders, 12 Wheat. 259; Mills v. County Commissioners, 4 Ill. 53; Trustees of Schools v. Tatman, 13 id. 37.
If grain warehousemen in Chicago 'pursue a public employment,' or 'exercise a sort of public office,' and sustain such relations to the public that all the grain consigned to 'the greatest grain market in the world' must necessarily pass through their hands, the State of Illinois, in virtue of its unquestionable power to regulate its internal commerce, may enact laws prescribing maximum rates of storage. The storage of grain offered for sale in the markets of a State most clearly pertains to its internal or domestic commerce.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.