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(Ga., 134 S. E. 304.)

tures, unaffected by the Constitution of the United States previous to the adoption of the 13th and 14th Articles of Amendment."

And it also said: "It is not necessary to inquire here into the full force of the clause forbidding a state to enforce any law which deprives a person of life, liberty, or property without due process of law, for that phrase has been often the subject of judicial construction, and is, under no admissible view of it, applicable to the present case."

In the course of the opinion Mr. Justice Miller said: "It is, however, the slaughterhouse privilege, which is mainly relied on to justify the charges of gross injustice to the public, and invasion of private right. It is not, and cannot be, successfully controverted that it is both the right and the duty of the legislative body-the supreme power of the state or municipality-to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else. The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the slaughterhouse company is required, under a heavy penalty, to permit any person who wishes to do so, to slaughter in their houses; and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommodations furnished him at that place."

In the case of State v. Edwards, 86 Me. 102, 25 L.R.A. 504, 41 Am. St. Rep. 528, 29 Atl. 947, it was said: "Where the defendants operated a public gristmill erected un

der the Mill Act, offering to grind grain for all comers, held, that they have dedicated their mill to public use, and must comply with legislative regulations of its use, so long as they keep their mill public."

This ruling, taken from the syllabus in the case last referred to, indicates the character of the question involved. It appears that the defendants were convicted, first, of refusing to receive grain at their gristmill there tendered to be ground; second, of taking excessive toll. In discussing the exceptions taken by the defendant to the ruling of the court that they were bound to receive the grist of grain offered, the supreme court of Maine said: "It is conceded by all authorities that the public use of property by the individual is within the scope of legislative control. And it matters not whether the use be authorized by express statute or dedicated by the individual proprietor. If it be a public use, it is within the supervision and control of the legislature. The troublesome question is, whether the use be public. Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398. In most branches of business the public has an interest. That interest varies according to the surrounding conditions of the particular business in question. If it be a monopoly, the interest of the public to be fairly and conveniently served is much greater than when the monopoly ends by force of wholesome competition. A distinction must be made between a public use and a use in which the public has an interest. In the former case, the public may control, because it is a use within the function of government to establish and maintain. In the latter case, it is a private enterprise that serves the public and in which it is interested to the extent of its necessities and convenience. The former is clearly within the control of the legislature, while the latter may not be. Many authorities, however, go to that extent. Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Budd v. New York, 143

U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468, and cases cited."

See also the case of Wartman v. Philadelphia, 33 Pa. 202. The Supreme Court of Washington, in the case of Spokane v. Robison, 6 Wash. 547, 33 Pac. 960, has held: "A slaughterhouse, as it is generally conducted, is notoriously offensive to the senses, and, we have no doubt, was one of the occupations especially contemplated by the legislature when the power was conferred on the cities. Nor do we think that the enactment of subdivision 34 (Laws 1889-90, p. 223 § 5) destroys any of the force of the language used or power conferred in subdivision 22 (id.). The vital question in this case, viz., the constitutional right of the city to exercise the power as a police regulation, has been so exhaustively argued by the Supreme Court of the United States in the noted Slaughter-House Cases, supra, that the law may be considered as settled in favor of the validity of such power, and it would be but a work of supererogation to discuss this subject at length. Our conclusion is that the city had the power to pass the ordinance; that the appellant was legally charged and convicted of its violation; and that the judgment must be affirmed."

In the case of Munn v. Illinois, supra, the question to be determined was whether the general assembly of Illinois could, under the limitations upon the legislative power of the states imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses at Chicago and other places in the state having not less than one hundred thousand inhabitants, "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 can not be accurately preserved;" and in the discussion of the question the Supreme Court of the United States said: "This brings us to in

quire as to the principles upon which this which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the constitution protects, we find that when private property is 'affected with a public interest, it ceases to be juris privati only.' This was said by Lord Chief Justice Hale more than 200 years ago, in his treatise De Portibus Maris, 1 Hargrave, Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.

He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control."

See, in this connection, Budd v. New York, supra. In the case of Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 67 L. ed. 1103, 27 A.L.R. 1280, 43 Sup. Ct. Rep. 630, the United States Supreme Court said: "Whether the public has become so peculiarly dependent on a particular business that the owner, by engaging therein, subjects himself to intimate public regulation, must be determined upon the facts of each case. The extent to which a business which has become 'clothed with a public interest' may be regulated depends upon the nature of the business, its relation to the public and the abuses reasonably to be feared."

In the case of Loughbridge v. Harris, 42 Ga. 500, it was distinctly recognized that, while the right of eminent domain could not be exercised by a company or individual

(Ga., 134 S. D. 304.)

erecting a mill and a milldam, nevertheless a mill had some of the attributes of public use, and could be regulated by law for certain defined purposes. The court said, in the opinion: "We do not think a mill, although it has some of the attributes of public use, and is regulated by law for certain defined purposes, can be regarded such public use as the Constitution recognizes, to authorize the exercise of this great constitutional power [the right of eminent domain]."

Slaughterhouses are subject to sanitary regulation. Park's Anno. Pol. Code, §§ 2119 (a)-2119 (h).

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In the case of Wartman v. Philadelphia, supra, it was said: municipal corporation comprising a town of any considerable magnitude, without a public market subject to the regulation of its own local authorities, would be an anomaly which at present has no existence among us. The state might undoubtedly withhold from a town or a city the right to regulate its markets, but to do so would be an act of mere tyranny, and a gross violation of the principle universally conceded to be just, that every community, whether large or small, should be permitted to control, in their own way, all those things which concern nobody but themselves. The daily supply of food to the people of a city is emphatically their own affair."

"The slaughter within the city of animals for food, and particularly the houses and equipments for such purposes, are within the police regulation of a municipality. For the sake of public health and comfort, therefore, a municipality, in the exercise of its police power, may prescribe the character of buildings and equipment for slaughterhouses, and the limits within which they may be erected and maintained. So too, under the rules already given as to its authority over nuisances, the municipality may declare them nuisances, and entirely exclude them from the corporate boundaries." 28 Cyc. 730, 731.

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See, in connection with the text, the authorities cited which bear directly upon the question now in hand.

"The police power of the states may, in the absence of any constitutional restrictions on the subject, be delegated to the various municipalities throughout the state, to be exercised by them within their respective corporate limits, or even beyond where expressly authorized by statute or charter. Indeed such delegation is necessary, for it is a well-recognized principle in government that the police requirements of a city are different from those of the state at large, and that stricter regulations are essential to the good order and peace of a crowded metropolis than are required in the sparsely peopled portions of the country. It is not necessary that the police power should be granted to municipalities in express words, for by the organization of a city or borough within its borders the state imparts to its creature, the municipality, the powers necessary to the performance of its functions, and to the protection of its citizens in their persons and property, and the police power is one of these, and while it is no doubt competent for the legislature, in creating municipal corporations, to deprive them of all common-law police powers and enact that they shall possess and exercise such only as are conferred by statute, such intention of the legislature will not be inferred simply because some of the common-law powers are enumerated, while no mention is made of others. Statutes conferring the police power on municipalities, however, should be so construed as not to authorize an unreasonable exercise thereof." 12 C. J. § 418.

And likewise here we find many authorities supporting so much of the quotation from the text as is applicable to the question here involved. Some of the language in the portions of the text last quoted above from the works Corpus Juris and Cyc. is very broad, and we do

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not adopt it to its full extent; but in so far as applicable to the question which we have before us in the instant case, the doctrine is sound as there stated.

In view of the strong reasons for upholding this ordinance and the decisions of numerous courts uphold

ing similar ordinances, we are of the
opinion that the decision of the
Court of Appeals in this case is cor-
rect and must be affirmed.
Judgment affirmed.

All the Justices concur, except
Russell, Ch. J., who dissents.

ANNOTATION.

Power to prescribe the manner or conditions under which slaughterhouse shall serve public.

[Constitutional Law, § 735; Municipal Corporations, § 103.]

Although not very clearly differentiated, two different principles are involved in the argument of the opinion in the reported case (SCHOEN BROS. V. PYLANT, ante, 1480). One deals with the question whether provisions as to public service may be upheld as a condition or incident of a sanitary measure adopted in the exercise of the police power to prevent nuisances; and the other with the question whether the business of a slaughterhouse is so affected with a public interest as to subject it to regulation in the interest. of the public in a manner and to an extent to which purely private business is not subject. While either principle or a combination of the two may be invoked in cases dealing with slaughterhouse business, it is obvious, as illustrated in the Munn Case (Munn v. Illinois (1877) 94 U. S. 113, 24 L. ed. 77), that the latter principle may in a proper case be invoked in support of the regulation of a business that does not fall within the operation of the former; in other words, a particular business may be of such a nature that it is deemed to be affected with a public interest which justifies regulation in the interest of the public, independently of any necessity for sanitary

measures.

The phrase "affected with the public interest," as used in Munn v. Illinois (U. S.) supra, was apparently regarded by the court in the reported case (SCHOEN BROS. V. PYLANT) as applicable to a slaughterhouse, although some parts of the opinion apparently refer the decision upholding the requirement of indiscriminate service of

the public to the other principle above referred to.

Although in the Slaughter-House Cases (1873) 16 Wall. (U. S.) 36, 21 L. ed. 394, the court held, against the vigorous dissent of four Justices, that the Louisiana statute, which gave to a corporation the exclusive privilege for twenty-five years of maintaining within certain limits slaughterhouses to serve an extensive area, and provided that all butchers should be permitted to do their slaughtering in such houses, was a proper exercise of the police power, none of the opinions apparently referred in terms to the matter of the slaughterhouses being affected with a public interest.

However, in Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. (1884) 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652, construing a subsequent constitutional provision in that state, which abolished the monopoly features of corporation charters and delegated to municipalities the power to regulate slaughtering, the court in effect held that the legislature had exceeded its powers in granting such a monopoly, asserting (by Mr. Justice Miller): "While we are not prepared to say that the legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that, in regard to two subjects so embraced, it cannot, by any contract, limit the exercise of those powers to the prejudice of the general welfare. These are the public health and public morals. The preservation of these is so necessary to the best interests of

social organization that a wise policy forbids the legislative body to devest itself of the power to enact laws for the preservation of health and the repression of

crime." The precise ground of the decision was that the legislature could not make the exclusive contract binding for any particular length of time, but that it conferred only a license, which could be revoked. To the same effect, see Crescent City L. S. L. & S. H. Co. v. New Orleans (1881) 33 La. Ann. 934.

The language quoted in the reported case as that of the United States Supreme Court in Chas. Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U. S. 522, 67 L. ed. 1103, 27 A.L.R. 1280, 43 Sup. Ct. Rep. 630, was that of the official reporter in his headnotes, rather than of the court. The decision in that case was that, so far as the packing house in question, was concerned, it was not so far affected with a public interest as to justify the state's regulation of its business to the extent of forcing it to pay such wages as might be fixed by the socalled "court"-the opinion (by Mr. Taft, Chief Justice) differentiating various kinds of businesses which might be said to be clothed with a public interest, and overruling the contention that the owner of such a business as that in the case at bar could be obliged to continue to conduct it at a loss.

In Chicago v. Rumpff (1867) 45 Ill. 90, 92 Am. Dec. 196, declaring void an ordinance which in effect gave to a concern the exclusive right to maintain a slaughterhouse in that city, where it appeared incidentally that one of the sections provided that all butchers should have the right to slaughter there, the court said that, where the city had made the necessary regulations required for the health or

comfort of the inhabitants, all persons inclined to pursue such an occupation should have the opportunity of conforming to such regulations; otherwise the ordinance would be unreasonable and tend to oppression.

In view of a constitutional prohibition of monopolies, it was held in Noe v. Morristown (1913) 128 Tenn. 350, 161 S. W. 485, Ann. Cas. 1915C, 241, that an ordinance was invalid which in effect constituted the premises of a certain concern the only place where animals could be slaughtered, and failed to provide that butchers could slaughter their own animals there.

In holding that the by-law of a city, which provided that no person should keep a slaughterhouse therein without being specially authorized by its council, was invalid, where the charter merely authorized the regulation of slaughterhouses as nuisances, the court in Re Nash (1873) 33 U. C. Q. B. 181, said that this by-law permitted the council's powers to be exercised in restraint of trade, and to grant a monopoly, as well as with partiality and favoritism, making it possible that all persons desiring to engage in that trade might not be placed upon the same footing.

As to the validity of an ordinance directing the establishment of a municipal slaughterhouse, which all the butchers of the city were to have the privilege and right to use, see Milwaukee v. Gross (1866) 21 Wis. 241, 91 Am. Dec. 472.

The power of the legislature to authorize a city to establish and maintain a slaughterhouse was recognized in Huesing v. Rock Island (1889) 128 Ill. 465, 15 Am. St. Rep. 129, 21 N. E. 558, but it was held that that power had not been conferred on the city under its charter. E. W. H.

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