People v. . Budd

I am unable to assent to the views expressed in the opinion for the court in this case. Judge PECKHAM has very thoroughly examined and considered the question in People v. Walsh, a similar case, and I concur with him in that opinion. As his opinion exhaustively reviews the cases and the text books, I shall attempt no extended, nor historical discussion, but will briefly state the grounds of my dissent.

This legislation is sought to be upheld as constitutional upon the ground that it is within a proper exercise of the sovereign power to prescribe regulations, when demanded by the general welfare, for the common protection of all. It is said to fall within the scope of the police power of the state. If this is true of this measure, then I fail to see where are the limits within which the exercise of that power can be confined. This act undertakes to regulate the prices, which can be charged by an individual in the prosecution of his private business. Its provisions are attempted to be justified in this case, because, it is said, the business in question is a virtual monopoly; owes its profitable existence to the benefit conferred by the Erie canal, and the interests of trade and commerce and the welfare of the state demand that its charges should be regulated by the sovereign power. This plea for the extension of the police power to the extent named, of interfering with the conduct of a legitimate private business enterprise, seems to me to find no support in reason, and it certainly tends to nullify that provision of the Constitution, which is supposed to guaranty to each individual that he shall not be deprived of his life, or liberty, or property, without due process of law.

The learned judge, writing the opinion, concedes that the uses to which a man may devote his property, the price which he may charge for such use, how much he shall demand or receive for his labor and the methods of conducting his business, are, as a general rule, not the subjects of legislative regulation. He well says that "these are a part of our liberty, of which, under the constitutional guaranty, we cannot *Page 31

be deprived." He believes, however, that he finds in this particular business of elevating grain "special conditions and circumstances," which justify legislative control. In my view, the concession, which the learned judge is obliged to make with respect to our constitutional liberties, impairs the force and effect of his opinion, unless he is able to show that the business in question is affected with a public use or interest, within the strict and proper meaning of the term. This I do not see that he accomplishes. The circumstances amount to nothing more than that the transhipment of grain from and to barges, vessels and cars, is more expeditiously and advantageously done through the use of grain elevators than in any other way, and those persons, who are interested in the shipment of grain, must, for the better promotion of their private interests, have resort to them.

It may be admitted that the use of the grain elevator is necessary to the grain shipper for the profitable or successful transaction of his business. But do such facts invest the grain elevating business, which the individual carries on, with such a public character as to give the public the right to regulate the charges which the owner may make? If the question affected a corporation, deriving its franchises and powers from the state, a different case would be presented. But here we have the case of an individual, conducting his private business in a legitimate manner and owing nothing to the state for privileges, or powers, or assistance conferred. He exercises the right, common to all, of engaging in a legitimate business for his own profit and gain.

I understand it to be the general rule, that the individual has absolute liberty to pursue his avocations and to contract with respect to his property; subject, only, to the restriction that he may not interfere thereby with his neighbor's rights or use of property. He is bound to use his own property so as not to injure his neighbor's. That liberty I take to be guaranteed by the Constitution to him, and to be a most valuable right. What force or reason has the suggestion that the business of the individual sustains some important relation to a *Page 32

branch of trade, in which other persons are largely engaged, and that it is, therefore, public in its nature, and therefore it should become the subject of legislative control as to charges? Is it because those other persons complain of the charges and allege that the business, as managed by those engaged in it, is virtually a monopoly? Has government any concern or interest in the price which one individual may demand of another, who resorts to him because of his superior business skill or facilities? How does the magnitude, or the publicity, of an individual's business furnish a valid reason for legislative interference? Every business is, in a measure, public, and is dependent upon public patronage for its maintenance and success. It is not compulsory upon the public to resort to these elevators; nor is the business exclusive, or beyond competition. There is a very wide distinction between those cases, which are referred to in the books, and which Lord ELLENBOROUGH speaks of (12 East, 539), where the public have a right to resort to the premises of the individual and to make use of them, and that individual has a monopoly in them for that purpose, and the case of an individual prosecuting his own business upon his own premises, by no leave, privilege, or franchise of the sovereign power. Here, it is a matter of option, or, rather, of agreement with the owner, whether his premises may be resorted to and his property used by other persons. The public have no independent legal right to make use of them.

I believe the constitutional rights of the individual are directly attacked by this legislation. Under the pretense that his business has, by its magnitude and situation, become invested with a public interest, it is claimed to be brought within the right of the government to regulate. Where is the limit to the exercise of sovereign power, if such a pretext is considered a justification? Of what use are our vaunted constitutional guarantees, if we may be deprived of property rights on so flimsy a pretext? It is said that the remedy for such oppressive and unjust legislation is to be found at the polls. I do not think that to be the only resort of the citizen. *Page 33

The constitutional guarantees were provided for and are enforceable by him for his protection.

I cannot believe that the theory, or the frame of our form of government, involved the idea that so great a power should be lodged in the legislature.

If the door is opened to this species of legislation, what protection have we against socialistic laws? What is to prevent subsequent legislatures from interfering with any other kind of private enterprise, if, from improved methods in its conduct and for peculiar reasons, it appears to the legislative body to virtually monopolize that branch of business, and that the owner takes advantage of his diligence, or superior skill and advantages, to demand what to them seems an apparently high or even excessive price for his labor or property, of those who resort to him? The legislature, in effect, says to the individual, when interfering to regulate the charges he may make in his business: It is true you are a private individual, engaged in a private and legitimate business, in the prosecution of which you are authorized and protected by the Constitution; but, nevertheless, we think, in the public interest, because your business has become so advantageous and so necessary to a large portion of the public, because of its superior facilities, that you shall not be allowed to pursue it, unless you reduce your charges to a rate fixed by us. As well may the legislature claim a right to interfere to reduce and regulate the charges which a combination of manufacturers has fixed for a certain line of goods.

It seems to me that the theory of such legislation is a startling departure from the true conception of governmental functions. They should work to protect and develop private rights and to secure to all individuals the uniform operation of the constitutional guarantees. The police power is incapable of being stretched to reach such a case as this, if we have any respect for the provisions of the Constitution. That power is properly exercised in the preservation of the private rights of individuals, in the maintenance of public order, in *Page 34

the supervision of public health and morals and in the prevention of a conflict of rights. Its justification for interference with a private, legitimate business is admissible, only, when that business may be said to be affected by a public use, or interest, by reason of some aid, grant or privilege conferred by the state. Judge COOLEY says in his valuable work on Constitutional Limitations (p. 739): "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."

This act, in my opinion, was an unconstitutional exercise of power by the legislature. Such legislation was not demanded by the general welfare, and it violates the social compact under which we live. It is a subversion of the constitutional guaranty. It is against such legislation that the constitutional guaranty was framed, and that the judicial power was intended by the Constitution to afford protection to the individual.

I think the judgment should be reversed and the appellant discharged.