Budd v. New York/Dissent Brewer

by David Josiah Brewer

United States Supreme Court

143 U.S. 517

Budd  v.  New York

Mr. Justice BREWER, dissenting.

I dissent from the opinion and judgment in these cases. The main proposition upon which they rest is, in my judgment, redically unsound. It is the doctrine of Munn v. Illinois, 94 U.S. 113, reaffirmed. That is, as declared in the syllabus and stated in the opinion in that case: '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.' The elaborate discussions of the question in the dissenting opinions in that case, and the present cases, when under consideration in the court of appeals of the state of New York, seem to forbid anything more than a general declaration of dissent. The vice of the doctrine is that it places a public interest in the use of property upon the same basis as a public use of property. Property is devoted to a public use when, and only when, the use is one which the public, in its organized capacity, to-wit, the state, has a right to create and maintain, and therefore one which all the public have a right to demand and share in. The use is public, because the public may create it, and the individual creating it is doing thereby and pro tanto the work of the state. The creation of all highways is a public duty. Railroads are highways. The state may build them. If an individual does that work, he is pro tanto doing the work of the state. He devotes his property to a public use. The state doing the work fixes the price for the use. It does not lose the right to fix the price because an individual voluntarily undertakes to do the work. But this public use is very different from a public interest in the use. There is scarcely any property in whose use the public has no interest. No man liveth unto himself alone, and no man's property is beyond the touch of another's welfare. Everything, the manner and extent of whose use affects the well-being of others, is property in whose use the public has an interest. Take, for instance, the only store in a little village. All the public of that village are interested in it; interested in the quantity and quality of the goods on its shelves and their prices, in the time at which it opens and closes, and, generally, in the way in which it is managed; in short, interested in the use. Does it follow that that village public has a right to control these matters? That which is true of the single small store in the village is also true of the largest mercantile establishment in the great city. The magnitude of the business does not change the principle. There may be more individuals interested, a larger public, but still the public. The country merchant who has a small warehouse in which the neighboring framers are wont to store their potatoes and grain preparatory to shipment occupies the same position as the proprietor of the largest elevator in New York. The public has in each case an interest in the use, and the same interest, no more and no less. I cannot bring myself to believe that when the owner of property has by his industry, skill, and money made a certain piece of his property of large value to many, he has thereby deprived himself of the full dominion over it which he had when it was of comparatively little value, nor can I believe that the control of the public over one's property or business is at all dependent upon the extent to which the public is benefited by it.

Surely the matters in which the public has the most interest are the supplies of food and clothing; yet can it be that by reason of this interest the state may fix the price at which the butcher must sell his meat, or the vendor of boots and shoes his goods? Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: First, that he shall not use it to his neighbor's injury, and that does not mean that he must use it for his neighbor's benefit; second, that if the devotes it to a public use, he gives to the public a right to control that use; and third, that whenver the public needs require, the public may take it upon payment of due compensation.

It is suggested that there is a monopoly, and that that justifies legislative interference. There are two kinds of monopoly,-one of law, the other of fact. The one exists when exclusive privileges are granted. Such a monopoly, the law which creates alone can break, and, being the creation of law, justifies legislative control. A monopoly of fact any one can break, and there is no necessity for legislative interference. It exists where any one, by his money and labor, furnishes facilities for business which no one else has. A man puts up in a city the only building suitable for offices. He has therefore a monopoly of that business; but it is a monopoly of fact, which any one can break, who, with like business courage, puts his means into a similar building. Because of the monopoly feature, subject thus easily to be broken, may the legislature regulate the price at which he will lease his offices? So, here, there are no exclusive privileges given to these elevators. They are not upon public ground. If the business is profitable, any one can build another; the field is open for all the elevators, and all the competition that may be desired. If there be a monopoly, it is one of fact and not of law, and one which any individual can break.

The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government. If it may regulate the price of one service which is not a public service, or the compensation for the use of one kind of property, which is not devoted to a public use, why may it not with equal reason regulate the price of all service, and the compensation to be paid for the use of all property? And, if so, 'Looking Backward' is nearer than a dream.

I dissent especially in these cases, because the statute in effect compels service without any compensation. It provides that the parties seeking the service of the elevator 'shall only be required to pay the actual cost of trimming or shoveling to the leg of the elevator when unloading, and trimming cargo when loading.' This work of trimming or shoveling is fully explained in the briefs of counsel. It is work performed by longshoremen, with handscoops or shovels, on the vessel unloading or receiving the grain. They are not in the regular employ of the elevator, but engaged in an independent service, and yet one whose careful and skillful performance is essential to the successful transfer of grain into and through the elevator. The full service required of the elevator compels its proprietor to employ and superintend the work of these longshoremen. For this work of employment and superintendence, and for the responsibility for the proper performance of their work, the act says that the proprietor of the elevator shall receive no compensation; he can charge only that which he pays out,-the actual cost. I had supposed that no man could be required to render any service to another individual without some compensation.

Again, in the Pinto Case, it appears that Mr. Pinto is the owner of a stationary elevator, built on private grounds. It is not on grounds devoted to a public use, like the right of way of a railroad company. There is nothing to indicate on his part a purpose to dedicate his property to public uses. So far as it is possible to make the business elevator a purely private business, he has done so. It will not do to say that the transferring of grain through an elevator is one step in the process of transportation, and that, therefore, they are quasi common carriers discharging a public duty, and subject to public control. They are not carriers in any proper sense of the term. They may facilitate carriage; so does the boxing and packing of goods for transportation. The engineers, firemen, brakemen, and all the thousands of employes of a railroad company are helping the business of transportation; but are they all common carriers simply because their work tends to facilitate the business of transportation, and may the legislature regulate their wages?

But, as I said, I do not care to enter into any extended discussion of the matter. I believe the time is not distant when the evils resulting from this assumption of a power on the part of government to determine the compensation a man may receive for the use of his property, or the performance of his personal services, will become so apparent that the courts will hasten to declare that government can prescribe compensation only when it grants a special privilege, as in the creation of a corporation, or when the service which is rendered is a public service, or the property is in fact devoted to a public use.

Mr. Justice FIELD and Mr. Justice BROWN concur with me in this dissent.