is in effect only asked to deal openly and frankly with his employer, so as not to retain the employment upon terms to which the latter is not willing to agree. And the liberty of making contracts does not include a liberty to procure employment from an unwilling employer, or without a fair understanding. Nor may the employer be foreclosed by legislation from exercising the same freedom of choice that is the right of the employé. To ask a man to agree, in advance, to refrain from affiliation with the union while retaining a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; for "It takes two to make a bargain." Having accepted employment on those terms, the man is still free to join the union when the period of employment expires; or, if employed at will, then at any time upon simply quitting the employment. And, if bound by his own agreement to refrain from joining during a stated period of employment, he is in no different situation from that which is necessarily incident to term contracts in general. For constitutional freedom of contract does not mean that a party is to be as free after making a contract as before; he is not free to break it without accountability. Freedom of contract, from the very nature of the thing, can be enjoyed only by being exercised; and each particular exercise of it involves making an engagement which, if fulfilled, prevents for the time any inconsistent course of conduct. . . . Judgment reversed, and the cause remanded for further proceedings not inconsistent with this opinion. HOLMES, J., dissenting. . . . DAY, J., with whom concurs Mr. Justice HUGHES, dissenting. . . . SECTION V. The Fourteenth Amendment and Public Callings. MUNN v. ILLINOIS. SUPREME COURT OF THE UNITED STATES. 1877. [94 United States, 113.]1 ERROR to the Supreme Court of Illinois. In 1872 an information was filed in the Criminal Court of Cook County, alleging that Munn & Scott were managers and lessees of a public warehouse in Chicago, known as the Northwestern Elevator, in which they stored grain in bulk and mixed the grain of different owners, and that they unlawfully transacted this business of public warehousemen without procuring a license. The plea was not guilty. The Illinois constitution of 1870, art. 13, provided that "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," that "the owner, lessee, or manager of each . . . public warehouse. city of not less than 100,000 inhabitants shall make weekly statements," and that "the general assembly shall pass laws for the inspection of grain, for the protection of producers, shippers, and receivers of grain and produce"; and the Illinois statute of April 25, 1871, enacted that (sec. 1) "public warehouses as defined in art. 13 of the Constitution. shall be divided into three classes," that (sec. 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, . . . in cities having not less than 100,000 inhabitants," that (sec. 3) "the proprietor, lessee, or manager of any public warehouse of class A shall .. in any procure a license" that, (sec. 4) he "shall file a bond. . . in the penal sum of $10,000, conditions for the faithful performance of his duty as a public warehouseman," that (sec. 5) " any person who shall transact the business . . without ... a license... every day," of class A shall shall . . . be fined . . . not less than $100 for and that (sec. 15) “every warehouseman publish . . rates for the storage of grain; . . . and such . . . rates . . shall apply to all grain .. from any person or source; and no discrimination shall be made" and "the maximum 1 The reporter's statement has not been reprinted. — ED. charge of storage and handling of grain shall be for the first thirty days or part thereof two cents per bushel," etc. In an agreed statement of facts it appeared that Chicago was a city of more than 100,000 inhabitants, and that Munn & Scott leased ground in 1862, erected the elevator in that year, ever since carried on there the business of storing and handling grain, charged rates higher than those fixed by the statute, and did not take out the statutory license or file the statutory bond. The defendants were found guilty and were fined $100. The judgment was affirmed by the Supreme Court of Illinois (two of the five judges dissenting), whereupon this writ of error was sued out, on the ground that sections 3, 4, 5, and 15 of the statute were repugnant to the Constitution of the United States, art. 1, sec. 8, clause 3, and art. 1, sec. 9, clause 6, and Amendments V and XIV. W. C. Goudy and another, for plaintiffs in error; and J. K. Edsall, Attorney General of Illinois, contra. WAITE, C. J., delivered the opinion of the court. The question to be determined in this case is whether the general assembly of Illinois can, 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. The courts Every statute is presumed to be constitutional. ought not to declare one to be unconstitutional, unless it is clearly If there is doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word "deprive," as used in the Fourteenth Amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection. While this provision of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several States of the Union. By the Fifth Amendment, it was introduced into the Constitution of the United States as a limitation upon the powers of the national government, and by the Fourteenth, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the States. . . ... When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A body politic," as aptly defined in the preamble of the constitution of Massachusetts, "is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non lædas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583," are nothing more nor less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things." Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. 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. With the Fifth Amendment in force, Congress, in 1820, conferred power upon the city of Washington "to regulate. the rates of wharfage at private wharves, . . the sweeping of chimneys, and to fix the rates of fees therefor, and the weight ... and quality of bread," 3 Stat. 587, sect. 7; and, in 1848, "to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of commission of auctioneers," 9 id. 224, sect. 2. From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular: it simply prevents the States from doing that which will operate as such a deprivation. This brings us to inquire as to the principles upon 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 two hundred years ago, in his treatise De Portibus Maris, 1 Harg. 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. From the same source comes the power to regulate the charges of common carriers, which was done in England as long ago as the third year of the reign of William and Mary, and continued until within a comparatively recent period. And in the first statute we find the following suggestive preamble, to wit: "And whereas divers wagoners and other carriers, by combination amongst themselves, have raised the prices of carriage of goods in many places to excessive rates, to the great injury of the trade: Be it, therefore, enacted," &c. 3 W. & M. c. 12, § 24; 3 Stat. at Large (Great Britain), 481. Common carriers exercise a sort of public office, and have duties to perform in which the public is interested. New Jersey Nav. Co. v. Merchants' Bank, 6 How. 382. Their business is, therefore, "affected with a public interest," within the meaning of the doctrine which Lord Hale has so forcibly stated. But we need not go further. Enough has already been said to show that, when private property is devoted to a public use, it is R. subject to public regulation. It remains only to ascertain whether |
