against any one-and of course this is true in regard to paper which does not possess a negotiable character. I am therefore of the opinion that the plaintiff can not recover. I am of the opinion, however, the county having received a sum of money from the bank, that this money, less the amount which has been paid, can be recovered back, with legal interest thereon, by an action of the proper kind, to wit, for money had and obtained. School District, etc., v. Lombard, 2 Dillon, 493.

1. PROMISSORY NOTE - ABSOLUTE AND CONDITIONAL PROMISE.-A note which promises to pay a given sum of money at the expiration of a specified time, or sooner, if the sum named is made from the sale of an article mentioned in the note, contains an absolute promise to pay the sum specified, which can not be modified by such conditional promise. Such a note has all the qualities necessary to render it negotiable by the law-merchant.

2. LEX LOCI-PRESUMPTIONS OF LAW.-A contract sued on in Indiana will be presumed to have been executed in that state; and where a note is made in Indiana, payable at a specified bank, but not naming the state in which the bank is situated, it will be presumed, unless the contrary appear, that the bank is situated in the same state.

3. PLEADING-REPLICATION-WAIVER.-Where an answer only denies the allegations of the complaint, and does not allege any new matter, no replication to it is required; but if new matter is alleged in the answer, and the defendant goes to trial without objection to the failure of the plaintiff to reply, the replication is waived, and the answer will be held to be controverted the same, as if a reply in denial had been filed.

4. PRACTICE-BILL OF EXCEPTIONS.-Where a bill of exceptions is filed one day after the time given within which to file it, it does not become part of the record in the Supreme Court.

Six months after date, or before, if made out of the sale of Drake's Hay Fork and Hay Carrier, I promise to pay to James B. Drake, or order, five hundred dollars, payable at the Citizens' National Bank of Indianapolis, value received, with use, without any relief from valuation or appraisement laws. If suit be instituted to enforce the payment thereof, I agree to pay a reasonable attorney's fee. The drawer and endorser severally waive presentment for payment, protest and notice of protest and non-payment of this note.

I promise, etc." We do not concur in the appellant's construction of the contract. As we construe it, it is an absolute promise to pay the money six months after the date of the note; but to pay it before, if the amount should be made out of the sale of the article mentioned. There was, therefore, no need of any averment that the amount had been made out of the sale, the six months having expired before the action was brought.

But the appellant contends that, with the construction which we place upon the note, the plaintiff's were still not entitled to recover, because the note was not governed by the law-merchant, it being necessary that it should have been, in order to avoid the defenses set up. A note, in order to be negotiable in accordance with the law-merchant, must be payable unconditionally and at all events, and at some fixed period of time, or upon some event which must inevitably happen. But the note here, as we have seen, contains an unconditional promise to pay the money at the expiration of six months from its date. It contains a promise, it is true, to pay the money before that time, if it should be made out of the sale of the property mentioned. But this conditional promise to pay the money before the time specified, unless performed, does not abrogate or interfere with the absolute promise to pay at the expiration of the time. The conditional promise not being performed, the absolute promise to pay, at the expiration of the time specified, remains in full force. Such conditional promise, embodied in a note containing an absolute promise to pay at a time specified, does not destroy the negotiable qualities of the paper, or take it out of the operation of the law-merchant. The case of Ernst v. Steckman, 74 Penn. 13, is exactly in point. There a note was executed, payable twelve months after date, or before, if made out of the sale of a certain seeding machine. This was held to be a negotiable note according to the law-merchant. See also the case of Cota v. Buck, 7 Met. 588, which is also in point.

It is also objected that the complaint does not allege that "the Citizens' National Bank of Indianapolis," at which the note was payable, was situated in the State of Indiana, and therefore, that it does not appear that the note falls within that class which, by our statute, is put upon the footing of bills of exchange. A contract, when sued upon in the courts of this state, will be presumed to have been executed in this state, unless the contrary appear. Franklin v. Thurston, 8 Blackf. 160; Hutchins v. Hanna, 8 Ind. 533. So where a note is made in this state, as it will be presumed the note in this case was, payable at a specified bank, but not naming the state in which it is situated, it will be presumed, the contrary not appearing, that the bank is situated in this state, because it will be presumed that the note is payable in, rather than out of, the state. The case is not like that of a note payable generally, but a particular place of payment is specified, though the state in which the payment is to be made is not mentioned. The maker of the note bound himself to pay the money at the Citizens' National Bank of Indianapolis, wherever that might be situated. It will not be presumed that he bound himself to pay the money out of the state in which the note was executed. We think the presumption is the other way, and that the bank specified is within, and not without, the state. The objection to the complaint is not, in our opinion, well taken.

The first paragraph of the defendant's answer is in these words: "The defendant, James P. Walker, for separate answer to the plaintiff's complaint herein, says that the promissory note in said complaint mentioned is not his note, and this he is ready to verify." There was no replication to this paragraph of answer, and the appellant claims that for that reason it stood admitted of record, that the appellant was not the

maker of the note. The counsel for the appellant, in their brief, say: "This is important; for, in looking up the evidence, we can do so with the fact conceded in the pleadings, that the note in suit is not the note of the appellant." There are two conclusive answers to the position thus assumed. First, the paragraph of answer was only a denial of what was alleged in the complaint, viz., the execution of the note by the appellant. It alleged no new matter, and needed no replication whatever. Second, if the answer had contained new matter, requiring a reply, still, the going to trial without objection was a waiver of any reply, and the matter of the answer would be deemed to have been controverted, as if a reply in denial had been filed. See Buskirk's Prac. 286, and cases there collected.

Some questions are made in the brief of counsel in respect to the evidence and the instructions of the court; but these questions are not properly before us. The instructions are not in the record, except as they are contained in a bill of exceptions. On the 23d day of May, 1874, the appellant's motion for a new trial was overruled and judgment rendered, and sixty days were given appellant in which to file his bill of exceptions. The bill was filed on the 23d day of July, of the same year. This was one day too late. The counsel for the appellees points out this objection to the bill of exceptions, and we can not regard it as constituting any part of the record.

There is no error in the record, and the judgment must be affirmed. The judgment is affirmed, with costs and five per cent. damages.

MARINE TORTS.

THE FLORENCE.

United States District Court, Eastern District of Michigan.

Before HON. H. B. BROWN, District Judge.

Where the master of a scow took possession of a lighter without authority, used her in getting wood off from the shore of lake St. Clair to the scow, and neglected to return her; held, that a court of admiralty had jurisdiction, and that the scow was liable in rem for the conversion. Inasmuch as the lighter was employed in the service of the scow upon navigable waters, she was held liable notwithstanding she was originally seized in a fish-pound staked off from the Detroit river.

The libel purported to be in a case of tort, and sets forth that libelant, being the owner of a lighter, the master of the scow Florence seized upon her, carried her away and appropriated her to the use of the scow, and has since kept and retained the same, refusing to return her on request, to libelant's damage $60. He also claimed the rental value of the lighter from April 15th, 1875, the date of her seizure, until the filing of the libel. Exceptions were taken upon the ground that the facts stated did not constitute a lien upon the vessel by the maritime law, and that libelant had not made a cause of action in rem. The answer also denied the principal allegations of the libel, and claimed that the lighter had been detained by a ship-carpenter who made certain repairs upon her by order of the libelant, and denied detention by the respondent. The facts were, in substance, that the lighter being sunk in a fishpound on the Canadian side of the Detroit river, communicating with the river by a narrow opening, the claimant applied to a brother of the libelant for the lighter, to be used in carrying wood off the shore to the scow, the Florence being at that time engaged in the wood trade between Pike creek, in Lake St. Clair, and Detroit. Wallace Lemaire, brother of the libelant,

without any authority, it seemed, gave the claimant permission to take the lighter, which he did. Having used her for two or three days, and finding her of little value, he left her lying near the shore of the lake, where she pounded and became leaky. Libelant having made demand for the return of the scow, it was agreed that she should be left at a ship-carpenter's in Canada to be repaired. The repairs being finished, the carpenter refused to deliver her to the libelant, who filed this libel to recover her value.

George W. Moore, for libelant; H. N. Swan, for respondent.

BROWN, J.:

The principal question discussed upon the argument related to the jurisdiction of the court. The libel sounds in tort, and it was strenuously insisted by claimant's advocate that no lien attached to the scow for the conversion of the lighter, both parties conceding that claimant took possession of her without authority from the owner. Cases of spoliation and damage are of admiralty and maritime jurisdiction. These include illegal seizures or depredations of vessels or goods afloat. Every violent dispossession of property on the ocean is, prima facie, a maritime tort, and as such belongs to the admiralty jurisdiction. Benedict, §§ 310-311. And the owners of a vessel are liable for torts committed by the master in the course of his employment.

There can be no doubt that if this were a case of contract—that is, if the agent of whom the claimant hired the scow, and whom claimant in good faith believed to have authority to loan it, had in fact possessed that authority, a libel in rem could have been sustained for the use of the lighter. A person furnishing a small boat or a lighter for the use of a vessel has as valid a lien upon her as though he had furnished an anchor, a compass, a chronometer, or any other of the articles usually denominated materials. In the case of the Dick Keys, 1 Bissell, 408, Mr. Justice McLean held that, where the master of a steamboat, on her behalf, agreed to pay $20 per day for the use of a barge, a libel might be maintained against the steamboat for the amount. Mr. Parsons says (2 Parsons on Shipping, 148): "If a barge is necessary to a steamboat, its hire to it will be regarded as material furnished for its equipment;" citing Amis v. Steamboat Louisa, 9 Mo. 621; Gleim v. Steamboat Belmont, 11 Mo. 112; Steamboat Kentucky v. Brooks, 1 Greene (Ia.) 398—cases which fully sustain the text of the learned commentator. Now, upon principle, it is difficult to say why, if an action in rem will lie for the use or value of property lawfully obtained, a similar action will not lie for the use or value of property unlawfully obtained; in other words, where the wrong is greater, the remedy should not be less. The general rule with regard to torts seems to be, that the owners and the vessel are liable for all the acts of the master done in the execution of the business in which he may be employed, by which third persons are injured, whether the injury was occasioned by the unlawful acts or by the negligence or want of skill of the master. Dias v. The Revenge, 3 Wash. 262; Dean v. Angus, Bee's Admiralty, 369; The Martha Ann, Alcott, 18. The principle underlying these decisions is that, for torts committed in the business of the master as such, or in which the ship is the active, the injuring or the benefited party, the injured party has his remedy as well against the vessel as against her owner and master. The mere fact that the person committing a tort is master of a vessel, of course, does not make her liable; but, if it be an act done in the pursuance of his business as master, or is beneficial to the vessel, she becomes liable in rem. The English cases hold that the vessel is not liable for

a willful collision. This doctrine. however, is denied in the case of Ralston v. The State Rights, Crabbe, 22, where a libel was sustained, for running down the libelant's vessel, done by the express direction of the master of the colliding vessel.

It is further insisted in this case that, locality being the test of jurisdiction in cases of tort, the injury was not done upon navigable waters, but that the lighter was seized within a fish-pound staked off from the river. I do not regard this fact as material. In the case of Plummer v. Webb, 4 Mason, 380, a libel was sustained for the abduction of a minor son upon a Voyage upon the high seas. Mr. Justice Story observed: "Here it is true that the tortious act, or cause of damage, might be properly deemed to arise in port; but it was a continuing act and cause of damage during the whole voyage; it was in no just sense a complete and perfected wrong until the departure of the vessel from port, and it traveled along with the parties as a continuing injury through the whole voyage, and terminated only with the death of the son at sea." See also Sherwood v. Hall, 3 Sumner, 128. In the case of the Bark Yankee v. Gallagher (McAllister, 467) the court held that, if the tortious act originates in port, and is not a perfected wrong until the vessel leaves the port, it is a continuous act, and travels with the tort-feasor and the injured party during the whole voyage, and comes within the jurisdiction of the admiralty upon the principle that, if the thing be done on the high seas and brought to land, it is appropriate to a court of admiralty to decide the question as a marine tort." In this case the libelant had been seized in the city of San Francisco by a vigilance committee, and carried on board the bark and landed in the Sandwich Islands. In this case, admitting that the fish-pound was a not navigable water, the lighter was taken to the scow then lying in navigable waters, and was used by her there, and I think the case falls within the authorities above cited.

No willful misconduct or wrongful purpose on the part of the claimant need be shown; for the gist of the action is the use of the lighter by the vessel, and I hold that it makes no difference whether the claimant became possessed of her by a contract, or by an act which was technically a conversion. The exception to the jurisdiction must therefore be overruled.

Ouillette, the owner of the scow, took possession of the lighter without authority from the libelant. After he had her for some time, and she had been injured either by Ouillette's negligence in allowing her to pound upon the bottom, or by becoming leaky, libelant went to Quillette and demanded that the lighter should be returned to him in good order. Ouillette then put her into the hands of a carpenter, who repaired the damages done her, and also made some alterations and repairs on her at the request of the libelant. When libelant went to the carpenter to demand her, he refused to give her up, either until the repairs put upon her by Ouillette's directions were paid, as libelant says, or until libelant would release Ouillette from all liability, or would clear Ouillette of the law, as the carpenter says. As it is clear that libelant offered to pay for the repairs that he had ordered, and the carpenter did not detain her upon that ground, his further detention of her must be attributed to Ouillette, notwithstanding his statement that the carpenter detained her without authority from him. It was the duty of Ouillette to see that the lighter was returned, and no excuse for the non-performance of that duty, not attributable to the libelant, can be accepted.

There is considerable conflict with regard to the value of the lighter; but, upon all the testimony, I think that $45 is as much as she is worth. There must be a decree for the libelant for this amount, with interest.

THE ILLINOIS WAREHOUSE LAW.

MUNN ET AL. v. THE PEOPLE.

Supreme Court of the United States, October Term, 1876.

1. CONSTITUTIONAL LAW-THE ILLINOIS WAREHOUSE LAW-CONSTITUTION-THE FOURTEENTH AMENDMENT.The statute of Illinois "to regulate public warehouses, and warehousing and inspection of grain, and to give effect to article 13 of the constitution of the state," approved April 25, 1871, which fixes 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," is constitutional and not repugnant to that part of the fourteenth amendment which ordains that no state "shall deprive any person of life, liberty or property with. out due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

2. . POWER TO REGULATE COMMERCE.-Nor is it repugnant to that part of sec. 8, art. 1, of the Constitution of the United States, which confers upon Congress the power "to regulate commerce with foreign nations and among the several states."

3.. SEC. 9, ART. 1 OF THE UNITED STATES CONSTI TUTION.-Nor is it repugnant to that part of sec. 9, art. 1 of the United States Constitution which provides that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another." 4. THE FOURTEENTH AMENDMENT CONSTRUED.-The provision of the fourteenth amendment, while new in the United States Constitution, is old as a principle of civilized government. By the fifth amendment it was introduced as a limitation upon the powers of the national government, and by the fourteenth, of the states. Before the adoption of the fourteenth amendment it was never supposed that statutes regulating the use or even the price of the use of private property necessarily deprived the owner of his property, without due process of law. It has not changed the law in this particular.

5. PRIVATE PROPERTY DEVOTED TO PUBLIC USE SUBJECT TO REGULATION.-Private property devoted to a public use is subject to public regulation. In England, from time immemorial, and in this country from its first coloni. zation, this principle has been recognized in the statutes regulating ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and the warehouses in this case fall within the same rule.

6. BUSINESS ESTABLISHED BEFORE ADOPTION OF REGULATIONS.-That the warehouses had been built and the business carried on before the regulations were adopted, is not material. They were from the beginning subject to the power of the body-politic to conform to such regulations as might be established by the proper authorities for the common good.

7. REASONABLE COMPENSATION A LEGISLATIVE QUES TION.-While in mere private contracts relating to matters in which the public has no interest, what is reasonable must be ascertained judicially; where the property is clothed with a public interest, it is within the power of the legislature to fix a maximum beyond which any charge made would be unreasonable.

IN ERROR to the Supreme Court of the State of Illinois.

Mr. Chief Justice WAITE delivered the opinion of the Court:

The question to be determined in this case is whether the general assembly of Illinois can, under the limita tions 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."

It is claimed that such a law is repugnant

1. To that part of section 8, article 1 of the Constitution of the United States which confers upon Congress the power "to regulate commerce with foreign nations and among the several states;"

2. To that part of section 9 of the same article, which provides that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another," and—

3. To that part of Amendment XIV, which ordains that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

We will consider the last of these objections first. Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. 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 the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained, for the purposes of government, all the powers of the British Parliament, and, through their state constitutions, or other forms of social compact, undertook to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective states, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the states and of the people of the states was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the states, so that now the governments of the states possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions.

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. R. R. 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 Chief Justice Taney in the License Cases (5 How. 583), are nothing more or 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, etc., 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 St., 587, § 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 St., 224, § 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.

Thus, as to ferries, Lord Hale says, in his treatise De Jure Maris (1 Harg. Law Tracts, 6), the king has "a right of franchise or privilege, that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the common use of all the king's subjects passing that way; because it doth in conse

quent tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz: that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these, he is fineable." So, if one owns the soil and landing places on both banks of a stream, he can not use them for the purposes of a public ferry, except upon such terms and conditions as the body-politic may from time to time impose, and this, because the common good requires that all public ways shall be under the control of the public authorities. This privilege or prerogative of the king, who in this connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the general welfare.

*

And again, as to wharves and wharfingers, Lord Hale, in his treatise, De Portibus Maris, already cited, says: "A man, for his own private advantage, may; in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz: makes the most of his own. * If the king or subject have a publick wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharfs only licensed by the queen, or because there is no other wharf in that port, as it may fall out where a port is newly erected; in that case there can not be taken arbitrary and excessive duties for cranage, wharfage, pesage, etc., neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the king's license or charter. For now the wharf and crane and other conveniences are affected with a publick interest, and they cease to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a publick interest." This statement of the law by Lord Hale was cited with approbation and acted upon by Lord Kenyon, at the beginning of the present century, in Bolt v. Stennett, 8 T. R. 606.

And the same has been held as to warehouses and warehousemen. In Allnutt v. Inglis, 12 East. 527, decided in 1810, it appeared that the London Dock Company had built warehouses in which wines were taken in store at such rates of charge as the company and the owners might agree upon. Afterwards the company obtained authority, under the general warehousing act, to receive wines from importers before the duties upon the importation were paid, and the question was, whether they could charge arbitrary rates for such storage, or must be content with a reasonable compensation. Upon this point Lord Ellenborough said (p. 537): "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. The question then is, whether, circumstanced as this company is, by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing. And according to

him, whenever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods, which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf." And further on (p. 539): "It is enough that there exists in the place, and for the commodity in question, a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches as laid down by Lord Hale in the passage referred to [that from De Portibus Maris, already quoted], which includes the good sense as well as the law of the subject." And in the same case, Le Blanc, J., said (p. 541): “Then, admitting these warehouses to be private property, and that the company might discontinue this application of them, or that they might have made what terms they pleased in the first instance, yet having as they now have this monopoly, the question is, whether the warehouses be not private property clothed with a public right, and if so, the principle of law attaches upon them. The privilege, then, of bonding these wines being at present confined by the act of Parliament to the company's warehouses, is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to pay an arbitrary, but a reasonable rent? But upon this record the company resist having their demand for warehouse rent confined within any limit; and though it does not follow that the rent in fact fixed by them is unreasonable, they do not choose to insist on its being reasonable for the purpose of raising the question. For this purpose, therefore, the question may be taken to be, whether they may claim an unreasonable rent. But though this be private property, yet the principle laid down by Lord Hale attaches upon it, that when private property is affected with a public interest, it ceases to be juris privati only; and in case of its dedication to such a purpose as this, the owners can not take arbitrary and excessive duties, but the duties must be reasonable."

In

We have quoted thus largely the words of these eminent expounders of the common law, because, as we think, we find in them the principle which supports the legislation we are now examining. Of Lord Hale it was once said by a learned American judge: "In England, even on rights of prerogative, they scan his words with as much care as if they had been found in Magna Charta, and, the meaning once ascertained, they do not trouble themselves to search any further." 6 Cowen, 536, note. later times the same principle came under consideration in the supreme court of Alabama. That court was called upon, in 1841, to decide whether the power granted to the city of Mobile to regulate the weight and price of bread was unconstitutional, and it was contended that "it would interfere with the right of the citizen to pursue his lawful trade or calling in the mode his judgment might dictate;" but the court said, "there is no motive * *for this interference on the part of the legislature with the lawful actions of individuals or the mode in which private property shall be enjoyed, unless such calling affects the public interest, or private property is employed in a manner which directly affects the body of the people. Upon this principle, in this state, tavern-keepers are licensed; and the county court is required at least once a year to settle the rates of inn-keepers. Upon the same principle is founded the control which the legis lature has always exercised in the establishment and regulation of mills, ferries, bridges, turnpike roads and other kindred subjects." Mobile v. Yuille, 3 Ala. N. S. 140.

From the same source comes the power to regulate