Dissenting opinion of Mr. JUSTICE MCALLISTER. 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 same 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 Dissenting opinion of Mr. JUSTICE MCALLISTER. 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 power, 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 7-69TH ILL. Dissenting opinion of Mr. JUSTICE MCALLISTER. 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 Dissenting opinion of Mr. JUSTICE MCALLISTER. 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 warehousemen of grain in the city of Chicago, here assumed by the State, 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 MARSHALL, "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 parties 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 Dissenting opinion of Mr. JUSTICE MCALLISTER. 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 it could not be invoked to sustain legislation which invaded private rights-where the police power was but a nfere 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 custodia, or deposits for hire, puts agisters of cattle, warehousemen 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 |