RAILWAY LEGISLATION 2OQ 



was a limitation upon the powers of Congress and in no respect 

 affected the states. The judgment of the supreme court of 

 Illinois was therefore affirmed. 



To this decision of the court, Justices Field and Strong dis- 

 sented and Justice Field prepared a long dissenting opinion 

 which was concurred in by Justice Strong. In this opinion, the 

 ground was taken that the act in question was invalid because 

 it amounted to a deprivation of property without due process 

 of law. The basis of the precedents cited of the regulation 

 of ferries, common carriers, etc., was declared to be, not the 

 public interest in the business, but the fact that there was 

 some special privilege granted by the state which of course 

 gave to the state the right to regulate the conditions under 

 which the privilege should be enjoyed. The warehousemen of 

 Chicago enjoyed no such special right or privilege, and therefore 

 their charges could not justly be interfered with. 1 



The court next took up the railroad cases. The public nature 

 of the railway business had been specifically declared by the 

 Supreme Court in 1872 in the case of Olcott v. The Supervisors 2 

 and so it was possible to apply the general principle enunciated 

 in Munn v. Illinois. There was, however, another point to 

 be considered. The famous Dartmouth College case 3 had 

 determined that a charter was a contract in the meaning of 

 Article I, section 10, of the United States constitution, which pro- 

 hibits a state from impairing the obligation of contracts, and 

 the railroads, through their attorneys, maintained that the 

 charters granted to them, either directly or by implication, the 

 right to fix the charges, and that in consequence the state was 



1 The dissenting judges hardly established their contention, for it is difficult to 

 see why the state could not consider the right to operate a warehouse as a special 

 privilege as well as the right to conduct a ferry, an inn, or a bakeshop. It seems 

 that the doctrine of public interest is really the basis for requiring special grants, 

 franchises, or licenses in all these cases. The dissenting opinion does make it plain, 

 however, that the majority of the court had laid down no satisfactory rule for dis- 

 tinguishing between a business that is juris privati and one that has been " clothed 

 with a public interest." Cf. Dunbar, " State Regulation," in Quarterly Journal 

 of Economics, ix. 305-332. 



2 1 6 Wallace, 678. See above, p. n. 



3 4 Wheaton, 518. 



