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his elevator for the exclusive purpose of purchasing grain to fill his contracts; and while at the time the elevator was not full, and there was room for the storage of the grain tendered by the petitioner, and the defendant had at times used vacant space in his elevator for the storage of grain of others, yet such use was a mere incident to, and subordinate to, his principal business of buying and selling grain, for which principal business he exclusively maintained and operated his elevator.

Now, my first objection is that by this decision a party is compelled by the mandate of the court to engage in a. business which he never intended to engage in, and which he does not desire to engage in, to wit, the business of maintaining a public elevator. His business is that of buying and selling grain, and he operates and maintains the elevator, which he owns, for the exclusive purpose of carrying on that business. That he may have sometimes accommodated his neighbors by the use of his elevator for the storage of their grain, and thus, to a limited extent, engaged in that business, does not change the fact, as admitted, that his principal business was that of buying and selling, and that he operated and maintained that elevator exclusively for the carrying on of that business, or the other admitted fact, that, if he is compelled, as he is compelled by this mandate, to receive grain as tendered, so long as he has storage capacity unoccupied in his elevator, his principal business, and that for which he built the elevator, will be utterly ruined and destroyed.

The question is not whether, if he should receive and store in his elevator grain for others, he might not so far bring himself within the scope of the law as to be deemed, for that transaction, engaged in the business of maintaining a public elevator, and thus bound by the charges fixed by statute; but whether, when he maintains an elevator exclusively for his own business, the fact that at times he has used vacant room in it for the storage of the grain of other persons, compels him to receive grain when tendered, irrespective of the injury which it does to his own business. And it is admitted that at the time of this tender there was not sufficient storage capacity in his elevator to hold and store the grain purchased by him in the conduct of his business, and this is a matter of no trifling moment to one engaged in the business of buying and selling grain. He cannot know in advance

when grain will be tendered at a price which will justify his purchase with a view to profit. The fact that to-day there may be storage capacity does not prove that to-morrow he may not need the entire capacity of his elevator; and yet, if because to-day there is room in his elevator, he is bound to receive any grain that shall be tendered, he may to-morrow be unable to make purchase of the offered grain. It is a matter of common knowledge that grain is not put into and taken out of an elevator in an instant; and if once deposited the owner cannot be compelled to remove it, merely for the accommodation of the warehouseman, but may leave it there indefinitely, so long as he pays the legal charges. The petition was for a writ of mandamus commanding the defendant, "so long as the capacity of his said elevator is sufficient for the purpose, to store such grain as may be tendered to him by the relator," and the decree of the court was that the "writ issue as prayed for," and that is the decision which is affirmed by this court.

I dissent, in the second place, because the facts show, in the words of Mr. Justice BRADLEY, no "practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community." Along the line of this single road, within the limits of this state, there are about 600 of these elevators, owned and operated by over 125 different persons, varying in cost of construction from $500 to $5,000. At every station there is land purchasable by any one at prices varying from $1.25 to $40 per acre, and a granary sufficient to store the average product of an ordinary Dakota farm can be erected at a cost of not exceeding $150. So it is that when any farmer or other individual can, at a cost of less than $200, provide himself with all the facilities for storing and shipping the entire product of an ordinary farm; when, along the line of a single railroad, there are 600 elevators already constructed, owned and operated by 125 different persons; when, at every station at which grain is marketed, there are from two to ten such elevators it is held that there exists a monopoly such as justifies control by the public of the prices at which grain shall be stored in any one of these many elevators. If this be a monopoly, justifying public control of prices for service, I am at a loss to perceive at what point the fact of monopoly will cease, and freedom of busi

ness commence; for, obviously, elevators along the line of that road were as plentiful as other institutions of industry, and as easily and cheaply constructed, and, therefore, savoring no more of monopoly.

I dissent, in the third place, because by this law the elevatorman is bound, not merely to receive, store and discharge the grain which is tendered to him, but also to insure and pay the cost of insurance, it matters not what that cost may be, whether more or less than he receives for the whole service. I do not care to enlarge upon this matter. If the legislature can compel a party, though confessedly to the disadvantage, injury and even destruction of his own special business of buying and selling grain, to receive and store grain, for whoever may demand it, in an elevator which he is maintaining and operating for the exclusive carrying on of his own business, at any price which it sees fit to allow, and at the same time compel him to advance the money to insure the property thus forced upon him, I can only say that it seems to me that the country is rapidly traveling the road which leads to that point where all freedom of contract and conduct will be lost. For these reasons, thus briefly stated, I am constrained to dissent from this opinion and judgment.

I am authorized to say that Mr. Justice FIELD, Mr. Justice JACKSON and Mr. Justice WHITE Concur in this dissent.*

Regulating the charges of grain elevators. The principal case is an important supplement to that of Budd v. New York, reported in 5 Am. R. R. & Corp. Rep. 610, and Munn v. Illinois, 94 U. S. 113. On the regulation of railroad charges, see Chicago, etc., R. R. Co. v. Minnesota, 2 Am. R. R. & Corp. Rep. 564, and note; Reagan v. Farmers' Loan & Trust Co., 9 Am. R. R. & Corp. Rep. 641, and note, and Chicago, B. & Q. R. Co. v. Jones, ante, p. 234. As to the regulation of charges in other lines of business, see Spring Valley Water Works v. San Francisco, 1 Am. R. R. & Corp. Rep. 96; Central Union Tel. Co. v. State, 2 Am. R. R. & Corp. Rep. 406; 2 Am. R. R. & Corp. Rep. 586, note, § 2; 6 Am. R. R. & Corp. Rep. 189, note; Commonwealth v. Covington & C. Bridge Co., 7 Am. R. R. & Corp. Rep. 638, and note; Covington & Cinn. Bridge Co. v. Kentucky, post.

* Reported in 153 U. S. 391; 14 Sup. Ct. Rep. 857.

COVINGTON & CINCINNATI BRIDGE Co. V. KENTUCKY.

(Supreme Court of United States, May 26, 1894.)

CONSTITUTIONAL LAW. POWER OF STATE TO REGULATE TOLLS ON BRIDGE BETWEEN STATES. INTERSTATE COMMERCE. A bridge was constructed across the Ohio river between the states of Ohio and Kentucky, by a company incorporated by the joint authority of both states, and authorized to collect certain tolls. The bridge was declared by congress to be a lawful structure. An act of the legislature of Kentucky subsequently undertook to fix and regulate the tolls which the company might charge. Held, that the act was invalid; that traffic across the river was interstate commerce and the bridge an instrument of such commerce, and that one state could not regulate the charges for transportation thereon without the consent of congress or of the other state. FULLER, Ch. J., and FIELD, GRAY and WHITE, JJ., concurred on the ground that the act of congress, being silent as to tolls, implied that the rates of toll should be as established by the two states; that the acts of incorporation constituted a contract between the corporation and both states, and that it could not be altered without the consent of both.

IN court of that state of Kentucky

error to the Court of Appeals of the state of Kentucky.

against the Covington and Cincinnati Bridge Company for violation of a statute of that state regulating tolls on defendant's bridge. A demurrer to the indictment was sustained, but the judgment thereon was reversed on appeal by the Court of Appeals of the state (21 S. W. Rep. 1042), and on trial defendant was adjudged guilty and the conviction was affirmed on appeal by the Court of Appeals. 22 S. W. Rep. 851. Defendant brought error.

This was an indictment found by the grand jury of Kenton county, Ky., against the defendant bridge company for demanding and collecting illegal tolls, refusing to sell tickets at the rates required by law, and for failing to keep an office for the sale of tickets at its bridge in said county.

The Covington and Cincinnati Bridge Company was incorporated under an act of the legislature of Kentucky, approved February 17, 1846, the 3d section of which required the confirmation of the act by the state of Ohio before the corporation should open its books for subscription, and the 8th section of which declared that "the president and directors shall have the right to fix the rates of toll for passing over said bridge, and to collect the same from all and every person or persons passing thereon, with

their goods, carriages or animals of every description or kind; provided, however, that the said company shall lay before the legislature of this state a correct statement of the cost of said. bridge, and an annual statement of the tolls received for passing the same, and also the cost of keeping the said bridge in repair and of the other expenses of the company; and the said president and directors shall, from time to time, reduce the rates of toll so that the net profits of the said bridge shall not exceed fifteen per cent per annum, after the proper deductions are made for repairs and charges of other descriptions."

By an act of the legislature of Ohio, enacted March 9, 1849, this company was made a body corporate and politic of that state, "with the same franchises, rights and privileges, and subject to the same duties, and liabilities," as were specified in its original incorporation; and with a further proviso that "nothing herein contained shall be construed to take away the jurisdiction of this state to the center of the said bridge, nor in anywise to acknowledge the jurisdiction of the commonwealth of Kentucky this side of the said center."

On March 20, 1850, this act of confirmation was amended by the legislature of Ohio by granting the company "power to enter upon any lands in the city of Cincinnati, from low-water mark in the Ohio river northwardly, not exceeding one hundred feet in width, to Front street, and appropriate the same" for passageways and abutments, etc.

The original act of incorporation was amended by the legisla ture of Kentucky by the following among other subsequent acts: (1) By act of February 23, 1856, authority was given to increase the capital stock from $300,000 to $700,000, with power in the city of Covington to subscribe for and purchase $100,000.

(2) By act of February 6, 1858, the company was authorized to issue preferred stock under certain restrictions, such stockholders to receive dividends of six per cent.

(3) By act of February 5, 1861, the capital stock was increased to $1,000,000, one-half of such amount in preferred stock, and to pledge the revenues of the company for the payment of dividends upon such preferred stock to the extent of fifteen per cent per

annum.

(4) By the act of January 21, 1865, the capital stock was

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