dissenting:
In 1862, Mtmn & Scott, the plaintiffs in error, having leased premises for the purpose, as a mere private enterprise, erected thereon the warehouse described in the information, in which to store grain for hire. They then commenced the business of warehousemen, which was continued down to the commencement of this prosecution for carrying it on without a license from the circuit court of Cook county so to do.
It is not disputed that, for the nine years they carried on the business, before July 1, 1871, when the act in question went into force, they held title to the premises, and exercised their employment in accordance with the law of the land, and it is not pretended that they did so under any grant of ' the legislature, in the nature of a franchise or privilege. Their property was private property ; their business was wholly a private enterprise, and their rights in both were necessarily the rights of private property. These propositions can not be successfully controverted.
On account of the views expressed by my brethren, and the conclusion arrived at, it becomes necessary to examine the questions involved in this case upo-n elementary grounds. All consideration of a franchise being excluded from the case, the matter, so far as it relates to the nature of their rights, may.be regarded precisely the same as in the case of any individual insisting upon constitutional protection for rights of private property. The natural rights of individuals are antecedent to and exist independently of the constitution. It is the office of the latter to secure, not to create or bestow them. Therefore the extent of constitutional protection can only be determined by a correct definition of the rights it was intended to secure. For that purpose, I shall rely upon one-authority alone, as none can question it.
Chancellor Kent says : “The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered and frequently declared by the people of this country to be natural, inherent and inalienable.” 1 Kent’s Com. (Comstock’s ed.) 587. Again, on the same page, he says: “Right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits prescribed by law.”
These plaintiffs in error, it must be conceded, had a natural inherent right to acquire the leasehold estate, to erect the warehouse upon it, and employ the same in the business of storing grain for reasonable reward or hire; and when the act in question went into force, that right was a vested one. As was said by Chase, Justice, in Calder v. Bull, 3 Dallas, 394: “When I say that a right is vested in a citizen, I mean that he has the power to do certain actions, or to possess certain things according to the law of the land.” And again : “If any one has a right to property, such right is a perfect and exclusive right.”
It is to secure these rights that governments are instituted. I can not stop to give even a brief account of the development, or the definition of the natural rights of individuals, as recognized by the common law long before the American revolution, or how the words of Magna Charta became fundamental in all our State governments and incorporated into the constitution of the United States. I am considering a question now solely under the constitution of this State, the very first section of which, after enumerating the rights of personal security and personal liberty, declares : “To secure these rights and the protection of property, governments are instituted among men,” etc. Then the next section embodies the great fundamental declaration of Magna Charta, that: “No person shall be deprived of life, liberty or property without due process of law.” Here, it will be perceived, are three subjects, each expressed by a single word, and respectively answering to and covering the three absolute natural rights, viz: the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. It will be further perceived that the right of property is placed upon the sainé footing as the right of personal security and liberty. And why, in point of reason and philosophy, should this not be so ? It must be admitted that the sense of property is deeply implanted in human nature—is inherent in man ; and if we are to infer a purpose from results, this sense must have been bestowed for the purpose of rousing mankind from sloth, and stimulating them to activity, and has, in fact, had far greater influence in founding civil government upon correct principles than any other motive or perception of the human mind. In the elegant and comprehensive language of Kent: “The natural and active sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution of government, the establishment of justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections.”
Such being the beneficent influence of the natural sense of property in forming and animating all the institutions of a true civilization, the right to its gratification within the limits of law was regarded as an absolute, natural, inherent right by the founders of the common law; is included in the fundamental doctrines of the Declaration of Independence as among the inalienable rights of man, and there denominated as the right to the pursuit of happiness ; and, in the bills of rights in American governments, it is placed upon an equality with the great natural rights of personal security and personal liberty.
It seems to me palpable, that the views of the majority of the court narrow this right below its proper measure. They hold, that if their private property is not taken, if the title to it is not disturbed, by the act in question, then these parties can not be considered as being thereby deprived of their property, within the meaning of the constitutional inhibition. This seems to me an erroneous view. The Bill of Rights, as I have said, does not create or bestow these natural rights, and has no reference to remedies between man and man, but was intended for the protection of the citizen as against the agencies of the government itself; and that protection was intended to be as broad as the rights protected. The right under consideration is not only to acquire but to enjoy property-
Our government is one of the people, and its functions subject to disturbance by popular excitements, by which one class of men with certain particular interests or prejudices, either political or otherwise, may come into poiver, displace all against whom those prejudices run, and oppress them with unfriendly legislation. Suppose the displaced class to- be those engaged in agriculture, then laws are passed designed to cripple the interests of those engaged in it. The price of laborers or employees is fixed at a high rate, and maximum prices for all products at low rates. By and by this oppressed class come into power, and they retaliate by singling out the large cities; they prescribe the rates of insurance, a standard for rents ; prescribe a schedule of charges for commission merchants, hotel keepers, proprietors of newspapers; and, above all, maximum low prices for all implements to be used by the dominant class. Now, in none of these instances, would property itself be taken or the title to it disturbed ; but, can there be any doubt that, by the principles of the Bill of Rights, all such legislation would be unconstitutional and void ? It was for the prevention of such things that constitutions are adopted.
“When the government,” says Cooley, “through its established agencies, interferes with the title to one’s property, or the independent enjoyment of it, and its act is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional defense which have become established in our system, and not by any rules that pertain to forms of procedure merely.” Cooley, Const. Lim. 356.
Having given this exposition of the nature and extent of the right of property, which the Bill of Rights was intended to secure against the agencies of the government, let us see whether such right was unconstitutionally invaded by the act in question. Before proceeding to that inquiry, it is proper to state that there is no question arising which has any reference to the power of eminent domain or taxation.
The act singles out from all the establishments of the State of a similar character the grain warehouses in Chicago. It arbitrarily fixes the maximum rates of hire or reward to be received by the proprietors, and forbids them from contracting with customers for any higher rate. It then prohibits, under severe penalties, the continuance of the business, unless they shall first apply for and obtain a license to carry it on, from the circuit court of the county, in the manner prescribed, and enter into bond, with sureties, to be approved by such court, in the penal sum of $10,000, conditioned for a full and unreserved compliance with all laws of the State respecting their business, including, of course, that fixing the maximum rate of hire or reward—for breach of which their license may be revoked, their business made criminal and stopped, and themselves and sureties liable on their bond. As was justly said by Mr. Justice Johnson, in the Supreme Court of the United States : “Licensing acts, in fact, in legislation are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc.” Gibbons v. Ogden, 9 Wheat. 232.
The proposition is, it seems to me, too plain for argument, that the nature of the power over the business of warehouse-men of grain in the city of Chicago, here assumed by the Stat e, is one of suppression—of destruction. For, if the legislature can fix the rate of compensation, then make it criminal to prosecute the business unless they shall obtain a license to carry it on, and give the bond required to.submit to the rate so fixed, then the power is limited only by the pleasure of the State, and it may fix the rate of compensation so low that the business can not possibly be continued under it, and is therefore suppressed—-destroyed. This is purely a question of power. “Questions of power,” says Chief Justice Makshall, “do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed.” Brown v. State of Maryland. 12 Wheat. 439.
This principle was illustrated in the case of McCulloch v. State of Maryland, 4 Wheat. 316, where it was not claimed that the particular tax levied by the State upon the United States Bank would destroy or even embarrass that institution, but the validity of the act was assailed wholly upon the nature of the power involved in it; and the central idea of Chief Justice Marshall’s opinion was, that a power to tax was, a power to tax limited only by the pleasure of the State, and that it was, therefore, a power to destroy. So here, the power to fix the maximum rates of compensation, and make the continuance of the business criminal unless the. jiarties will submit to such rates, procure license, and give the bond—a power whose exercise is "limited only by the pleasure of the State as to what that rate shall be—is necessarily a power to destroy a business which had been carried on for nine years, according to the law of the land, and in which these parties had vested rights. I insist that they could not be deprived of these rights except by due process of law. The legislature had no more power to accomplish the destruction of such business, and deprive them of the use of their property, by such indirect modes, than by a direct fiat to require the sheriff of the county to burn their warehouse.
The majority of the court seem to place their conclusion, in part, upon the ground that these parties exercised a public employment, and were therefore subject to the police power of the State. We had occasion in The Town of Lake View v. Rosehill Cemetery, Sept. T. 1873, to examine somewhat into the nature of that power when resorted to as a color for subverting private rights of property, and there, held that i.t could not be invoked to sustain legislation which invaded private rights—where the police power was but a mere color for such invasion.
But these parties did not exercise a public employment. Such was not the character given to their business by the common law. In Coggs v. Bernard, 2 Ld. Raym., the leading case on the subject of Bailments, Chief Justice Holt, in his celebrated judgment, says : “As to the fifth sort of bailments, viz: a delivery to carry or otherwise manage, for a reward, to be paid to the bailee, those cases'are of two sorts: either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer, at all events ; and this is the case of the common carrier, common hoyman, master of a ship,” etc. This degree of liability, viz : to answer at all events, attaches by the common law in this country only to common carriers and innkeepers. It does not attach to warehousemen. Hence, we find that Mr. Justice Story, in classifying bailments locatio custodios, or deposits for hire, puts agisters of cattle, warehouse-men and wharfingers together as those whose obligations would fall under the same rule. Story on Bailments, (8 ed.) sec. 442. Warehousemen are bound only to take common and reasonable care of the commodities entrusted to their charge, id. sec. 444, while common carriers and inn-keepers are insurers, because they exercise a public employment.
Their business was, therefore, simply that of warehouse-men. Such was the character given to it by the common law, and in which they had vested rights for nine years anterior to this act. This being so, it was not within the power of the State government, by any declaration, either through a constitutional amendment or the legislature, to change the character of such business, so as to subject it to legislative control, in the nature of a power of suppression. Because a convention is assembled to amend the constitution, no individual is thereby subject to be deprived of vested rights. The great fundamental principles of a republican form of government continue in force during such conventions, and are not superseded by an amendment of'the constitution. Besides, the constitution, as amended by the introduction of the article concerning warehouses, in nowise contemplated or authorized the assertion of the power of suppression.
But there is another view in which it is clear the legislature transcended its power, by this act.
The Chicago river, running west from its connection with Lake Michigan about a mile, and then dividing into two branches, one north and the other south, running through the city, forms the port of Chicago. The warehouse in question, and probably all others at which this statute was aimed, are situated upon this port, and constitute the direct and indispensable accessories to commerce in grain upon the great lakes, between that port and other States. And the question arises, can these accessories to such commerce be suppressed by the State government? The States have ceded, by express grant in the federal constitution, to the government thereby organized, the power <! to regulate commerce with foreign nations and among the several States.” The power, therefore, to regulate inter-State commerce is gone from the several States, and vested exclusively in Congress, especially after it has been exercised by the latter. Gibbons v. Ogden, 9 Wheat. 1; Steamboat Co. v. Livingston, 3 Cow. R. 743; Thurber v. The People, 13 Ill. 535; 5 Howard R. 573.
The power to regulate commerce upon the great lakes has long since been exercised by Congress. If these grain warehouses be in fact, as doubtless they are, the direct and indispensable accessories to commerce in grain upon the lakes, and between the port of Chicago, and ports in other States, will it be said that this State can exert a power over them whose very nature is that of suppression—of destruction ? Can the State, by her legislative authority, suppress all commerce in grain upon the lakes between Chicago and the Eastern States, when not necessary to the preservation of the morals, health or safety of the community ? If not, then how can it restrain and destroy the very means by which alone that commerce may be carried on with the conveniences suitable to the activity of the age ?
This power in Congress to regulate commerce among the several States, is contained in the same grant as that to regulate it with foreign nations, and is placed upon' identically the same footing. Now, suppose the legislature of New York should pass an act like this, designed and directed against all warehouses in the city of New York engaged in receiving,, storing and discharging all commodities, whether imports or exports, brought within the channels of such commerce. These warehouses, it must be conceded, are as directly employed in that commerce, and as indispensable to it, as the vessels upon which it is borne from port to port.
The act, it will be perceived, operates directly upon the entire business of warehousemen. The component parts of that business are various transactions, in which the carrier and the merchants engaged in such commerce, as well as the warehousemen, are directly interested. So far, therefore, as it operates upon the business, it must upon all these various transactions forming its component parts, and it prescribes rules by which they must be governed, or cease altogether. This could be nothing more nor less than an attempt to regulate foreign commerce, as a direct exercise of such power, without reference to any police power. The act was not necessary to the preservation of the health, the morals, or the safety of the community, which are the true purposes of the police power; but its purpose was to compel the ware-housemen to conduct their business upon a compensation prescribed by the State.
As was said by Mr. Justice McLean, in 5 Howard, 592 : “Under the pretense of a police regulation, a State can not counteract the commercial power of Congress.”
It seems to me the cases are parallel, and the act void.
Mr. Justice Scott :I can not concur in the reasoning or conclusions of the majority of the court, but do concur in the views presented by Mr. Justice McAllister in his dissenting opinion.