THE RIGHTS OF THE PUBLIC OVER QUASI-PUB TH LIC SERVICES. BY HON. WALTER CLARK, Associate Justice of the Supreme Court of North Carolina. HE right of the public to regulate the charges of common carriers and of all others discharging public or quasi-public duties is one of transcendent importance, yet the subject is one upon which many practising lawyers even are sometimes not as well informed as they might be, because in its present proportions it is of comparatively recent development, and cases involving it have been rarely tried as yet at the bar of the courts of some of the States, though the subject is on trial at the greater bar of public opinion. It is a matter, too, upon which every citizen, be he lawyer or layman, should be thoroughly informed as to his rights and the rights of the public. The decisions on the subject by the Supreme Court of the Union have been quite uniform, and have so thoroughly illuminated and settled the whole matter that it can be discussed with small reference to the decisions of other tribunals. The right of the public to regulate the charges of common carriers, even in times when the public granted no franchises and conferred no right of eminent domain, is far older than the common law, older even than the civil law, and was recognized by both as a necessary and an unquestioned rule. Twenty-one years ago, in 1876, the Supreme Court of the United States was first called upon pointedly to review and reaffirm the recognized law of the ages, that the sovereign possessed the right to regulate the charges for services rendered in a public employment or for the use of property affected with a public interest. The particular instance was the constitutionality of an act of the General Assembly of Illinois regulating the charges of warehouses for the storage of grain. It was contended that, unlike railroads and telegraph companies, the public had conferred no franchise by an act of incorporation, and had not used the right of eminent domain to take private property for their use, and hence that the right to regulate warehouse rates was not to be placed on the same footing as the unquestioned public right to regulate the charges of common carriers. The underlying principle, however, was held to be broad enough to embrace the public right to fix and control the charges of grain warehouses. Though the pressure of immense interests was brought to bear to swerve the court from the well-beaten track by the aid of the ablest and most skilful members of the bar, it firmly held to the principles which have always been law among Anglo-Saxon people. The court laid down the following principles, to which, with one slight deviation, it has ever since adhered: 1. Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and, when necessary for the public good, the manner in which each shall use his own property. 2. It has, in the exercise of these powers, been customary in England from time immemorial, and in this country from the first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, auctioneers, innkeepers, and many other matters of like quality, and in so doing to fix a maximum charge to be made for services rendered, accommodations furnished, and articles sold. 3. The 14th Amendment to the U. S. Constitution does not in anywise amend the law in this particular. 4. When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest submit to be controlled by the public. 5. The limitation by legislative enactment of the rate of charges for services rendered in an employment of a public nature, or for the use of property in which the public has an interest, establishes no new principle in the law, but only gives a new effect to an old one. The opinion was rendered by Chief Justice Waite, and is a very able and elaborate one. Only two Judges out of the nine upon that court (United States Supreme Court) dissented from any part of the opinion. It is doubtful if a more important one has been delivered by that court in recent years than this negative which it then and there put upon the attempt to reverse the immemorial law that the public have the right to regulate charges in all matters affected with a public use. The court pointed out that the celebrated Chief Justice Sir Matthew Hale, centuries ago, had laid it down in his treatise, "De Jure Maris," that the sovereign could regulate the conduct and tolls of public ferries; and in his treatise "De Portibus Maris," had laid down the same as the rule of the common law as to wharves and wharfingers and as to all other property and vocations "affected by a public interest"; and also cited many English and American decisions recognizing this to be a true statement of the wellsettled "law of the land." The court in that case well said that in all such matters, The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge as one of the means of regulation, is implied. In fact the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms or forego the use. . . . To limit the rate of charges of services rendered in a public employment, or for the use of property in which the public has an interest, is only changing a regulation which existed before. Therefore the court declared that it is not "a taking of property without due process of law." The court then fur ther said: We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls, not to the courts. This is a very plain and straightforward declaration of the immemorial law; and if that court, under tremendous pressure, has since intimated that the courts might supervise legislative action if the rates should ever be such as to destroy the value of property, it has never infringed upon its declaration, that the people, through its representatives in the lawmaking body, could prescribe rates; and the court in fact has never ventured to set aside the legislative rates as unreasonable in a single case ever brought before it, nor has it fixed the precise line at which it would assume to intervene. By all the decisions the right to fix rates being not a judicial but a legislative power, to be exercised by the legislature itself or through a commission created by it, it logically follows that, as the court said in this case, and reaffirmed in Budd vs. New York, 143 U. S. 516, the remedy for a harsh exercise of the power (if it should ever happen) is a recourse to the people at the ballot box, not to the courts. For an unwise or oppressive use of its powers, the legislature is not subject to the supervision of the judiciary, which is merely a coördinate branch of the government. It is only when the legislature does an act-whether wisely or unwiselywhich is not within the scope of its powers, that the courts can declare it unconstitutional. 66 In this same case (Munn vs. Illinois) the court further held that the provision in the 14th Amendment, that no State shall deny to any person within its jurisdiction the equal protection of the laws," has no application, for "certainly," it says, "it cannot be claimed that this prevents the State from regulating the fares of hackmen or the charges of draymen in Chicago unless it does the same thing in every other place in its jurisdiction." This rule has since been reiterated in Dow vs. Beidelman, 125 U. S. 680. Some time has been given to the consideration of Munn vs. Illinois, as it is the leading case, in which the force of great combinations of capital was brought to bear to remove the ancient landmarks which protected the people from excessive and unreasonable charges. No case has been more often cited since and approved. If at common law the public had a right to regulate the charges of stage lines, grist mills, bakers, chimney-sweeps, innkeepers, and the like, as to whom the public conferred no franchises, for an overwhelming reason it must possess that right as to the modern carriers by rail, whose companies receive their existence from the public will and have the breath of life breathed into them by legislative act. Beyond that, railroad corporations are vested with the power of eminent domain, since power is given to them to take possession of the lands of others, against their will, in order to build their tracks. This could only be done if these corporations are created for the public benefit, since the Constitution forbids private property to be taken "except for public uses." In the very next case to Munn vs. Illinois, the Supreme Court of the United States held (Chicago R. R. vs. Iowa, 94 U. S. 155) that railroads, being common carriers for hire, are "subject to legislative control as to their rates of fare and freight," and that the State not having exercised the right for a long series of years made no difference, for a government could lose none of its powers by non-user; and, further, that it did not "affect the case that before the legislature had fixed the maximum rate the company had pledged its income as security for debt and had leased its road to a tenant who paid a higher rent because the rates had not been reduced by legislative enactment, since the company held its franchise subject to the legislative power to regulate rates, and it could not convey either to its mortgagee or its lessee greater rights than it had itself." The opinion in this case also was written by the Chief Justice. The same decision (cited and approved since in Ruggles vs. R. Co. 108 U. S. 526, and R. Co. vs. Illinois, 108 U. S. 541, and in other cases) sustained the power of the legislature to classify railroads according to the amount of business done, and to prescribe "a maximum of rates for each of the classes," the court saying that a uniform rate for all railroads in the State might possibly operate unjustly, and that at any rate it was in the discretion of the general assembly to classify the roads and fix different rates. In fact, in the latest case, Covington vs. Sanford, 164 U. S. 578, it was held that it was in the legislative power to prescribe a different rate for each road. In Peik vs. Chicago, 94 U. S. 164, the court held, the Chief Justice again delivering the opinion, that where a railroad was chartered by two or more States, each State had nevertheless the right to fix the rates between any two points in its own territory; and further said, quoting Munn vs. Illinois, that the legislature and not the courts must say what are reasonable rates, for the legislative rate "binds the courts as well as the people. If it has been improperly fixed, the legislature, not the courts, must be appealed to for the change." And on the next page, Chicago vs. Ackley, 94 U. S. 179, the court again held that the maximum fixed by the legislature is binding, and that the railroad company will not be permitted to collect more by showing in the courts that the prescribed rate is unreasonably low. This has since been reaffirmed in Budd vs. New York, 143 U. S. 516, at pp. 546, 547. This question, however, cannot arise as to rates which shall be fixed by the legislature or the |