The

taxation was imposed for irrigation purposes was unconstitutional. In the course of the opinion of the court Mr. Justice Peckham said: 9 66 The use must be regarded as a public use or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect. use for which private property is to be taken must be a public one, whether the taking be by the exercise of the right of eminent domain or by that of taxation. A private company or corporation without the power to acquire the land in invitum would be of no real benefit. If that power could be conferred upon them it could only be upon the ground that the property they took was to be taken for a public purpose.'

9 At page 160.

" 10

10 In the following cases, among others, the public character of the irrigation systems is recognized:

United States-Stanislaus Co. v. San Joaquin C. & I. Co., 192 U. S. 201, 48 Law Ed. 406, 24 Sup. Ct. 24 (1903); San Diego L. & I. Co. v. National City, 174 U. S. 739, 43 Law Ed. 1154, 19 Sup. Ct. 804 (1899); Atlantic Trust Co. v. Goodbridge Canal & Irr. Co., 79 Fed. 39 (1897).

Arizona.-Slosser v. Salt River Valley Co., 7 Ariz. 376, 65 Pac. 332, B. & W. 37 (1901).

California-Price v. Riverside Co., 56 Cal. 431 (1880); Merrill v. Southside Irr. Co., 112 Cal. 426, 44 Pac. 720 (1896).

Colorado-Wheeler v. No. Col. Irr. Co., 10 Colo. 582, 17 Pac. 487, 3 Am. St. Rep. 603, B. & W. 301 (1888); Junction Creek, etc., Ditch Co. v. City of Durango, 21 Colo. 194, 40 Pac. 356 (1895); Wright v. Platte Co., 27 Colo. 322, 61 Pac. 603 (1900).

Idaho-Witterding v. Green (Idaho, 1896), 45 Pac. 134 (1896).

Kansas—Western Irr. & Land Co. v. Chapman (Kan. App. 1899), 59 Pac. 1098 (1899).

Nebraska-Paxton Co. v. Farmers' Co., 45 Neb. 884, 64 N. W. 343, 50 Am. St. Rep. 585 (1895).

Oregon-Umatilla Co. v. Barnhardt, 22 Ore. 389, 30 Pac. 37 (1892). Texas-Mud Creek Irrigation Co. v. Vivian, 74 Tex. 170, 11 S. W. 1078

(1889).

Washington State Prescott Irrg. Co. v. Flathers, 20 Wash. 454, 55 Pac. 635 (1899).

§ 47. Grist mills as an example.

The grist mills constitute another instance of an enterprise which it is close to the line of constitutionality for the State to aid. There is an excellent decision in the Supreme Court of the United States, 11 in which the tests are discussed by which the public character of a business may be judged. The issue was whether a series of bonds were valid under the State Constitution. These bonds had been made to aid in the construction and completion of a steam custom grist mill within the township. The Constitution empowered the execution of bonds for the purpose of building bridges, free or otherwise, or to aid in the construction of railroads or water power by donation thereto or taking stock therein, or for other works of public improvement.

Mr. Justice Hunt in delivering the opinion of the court said in part: "The mill was a steam mill. Does such an establishment fall within the description of other works of internal im provement? It would require great nicety of reasoning to give a definition of the expression internal improvement which would show that the means of transportation were more valuable to the people of Kansas than the means of obtaining bread. It would be a poor consolation to the people of this town to give them the power of going in or out of the town upon a railroad, while they were refused the means of grinding their wheat. The statute of Kansas upon the subject of grist mills is based upon the idea, and, indeed, upon the declaration, that all grist mills are public institutions. In c. 65 of the Statute of 1868, p. 573, it is thus enacted: All water, steam or other mills, whose owners or occupiers grind or offer to grind grain for toll or pay are hereby declared public mills. Regulation is then made for the order in which customers shall be attended to, the liability of the miller, the rates of toll. Under our recent

11 Township of Burlington v. Beasley, 94 U. S. 310, 24 L. Ed. 161 (1876).

decision in Munn v. Illinois, and the other cases upon kindred subjects, it would be competent to the legislature of Kansas, to regulate the toll to be taken at these mills."

It is plain that this is a close case when it comes down to final adjudication. It is true that it is indispensable that the people of Kansas should have the means of obtaining bread, but so is it necessary that they should have the means of getting meat. Purveying to a public need does not make a calling public, for upon that line of reasoning most businesses do that to a degree. It must be, therefore, that it is the conditions surrounding the vending that affect the employment with a public interWhere there is virtual competition the State has no function to interfere: it is only where there is virtual monopoly that the State may regulate the service. Upon the whole that is the basis upon which this opinion is founded. It holds that it would be competent for the legislature to regulate the toll to be taken by these mills; therefore it argues that the establishment of them is a public purpose, treating these matters as all one legal problem.1

est.

12

TOPIC B.-EFFECT OF LEGAL MONOPOLY CONSIDERED.

§ 48. Grant of an exclusive franchise.

The grant of an exclusive franchise is, as has been seen, a thing which will justify regulating the business of the holder of it as a public business. Most carriers have no such special and exclusive franchise, and they are none the less in the public service; and the reason for including carriers in that category and for justifying the legal regulation of their business must be

12 The following cases, among others, thus in effect hold grist mills to be in public calling: Boston Mill Corp. v. Newman, 12 Pick. 467 (1832); Traver v. Merrick County, 14 Neb. 327, 45 Am. Rep. 111 (1883); Scudder v. Trenton Falls Co., 1 Saxt. Ch. (N. J.) 694, 23 Am. Dec. 756 (1832); Blair v. Cummings County, 111 U. S. 363, 4 Sup. Ct. 449, 28 L. Ed. 45 (1884).

sought elsewhere. But wherever a carrier has such an exclusive franchise (as often happens, for instance, in the case of a railway) he is for that reason subject to legal regulation.

§ 49. Bonded warehouses as an example.

That an exclusive franchise, which constitutes a legal monopoly, puts the person who possesses it in the position of public service, is entirely clear. The leading case upon legal monopoly is Allnutt v. Inglis.1 The question there was whether the London Dock Company had a right to insist upon an arbitrary hire for receiving wines into its warehouses, or whether they were bound to receive them there for a reasonable reward only. It appeared that by virtue of the Warehousing Act that company alone had the legal privilege of taking goods in bond in the port of London.

Lord Ellenborough said in part: "There is no doubt that the general principle is favored both in law and justice, that every man may fix what price he pleases upon his own property or the use of it; but if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms. Here then the company's warehouses were invested with the monopoly of a public privilege, and therefore they must by law confine themselves to take reasonable rates for the use of them for that purpose.

According to this case special legal privilege has its correlative legal obligation; that is, the acceptance of unusual rights involves a continuous duty to serve all that apply. This solution is in reality the logic of the situation. If by force of his

112 East, 527, B. & W. 70 (1810).

2 As to the public character of warehouses in general, see the annotation to § 28, supra.

franchise the holder could refuse facilities to all the world, the position of things would be intolerable. The doctrine of this case provides an escape from that situation. It does not deny that the privilege exists to its full extent, but it puts upon the grantee the limitation that he may charge reasonable prices only. It is in this way that in modern times the intolerable condition that special privilege without special duty would create is avoided.

§ 50. Log driving corporations as an example.

Weymouth v. Penobscot Log Driving Company,3 a case outside the beaten track, shows that the doctrine of public calling will be extended to any case in which the decisive circumstance of legal monopoly is shown. This was an action brought against the log driving company by a lumberman who had hauled his logs to various landings on the west branch of the Penobscot River, where he had notified the company that they were located; he alleged that those in charge of the drive had carelessly left the logs behind so that they did not come to market that year. The company requested the court to instruct the jury that the corporation was not under any legal obligation to drive the logs upon request.

Mr. Justice Danforth held that the instruction was properly refused under the circumstances. (6 In this case the charter conferred the privilege of driving, not a part, not such a portion as the company might choose, but all the logs to be driven. This right having been accepted by the company, it became a vested and also an exclusive right. It is therefore taken not only from all other corporations, but excludes the owner as well. By its acceptance and exclusion of the owner from the privilege, in justice and in law it assumed an obligation corresponding to, and commensurate with its privilege. It accepted the right to drive all the logs, and that acceptance was an undertaking to

371 Me. 29, B. & W. 27 (1880).