§ 146. Immunity from Governmental Control.—The charter of a corporation is a contract, as that term is employed by the Federal Constitution. In the granting of such charter a legislature may protect the corporation from any subsequent legislative control. It may bind itself not to exercise its power in the regulation of the business of a corporation thus protected. In the case of a railway, of a street railroad, of a telegraph or gas company, etc., it may bind itself not to regulate established rates of fare, or of freight or other charges, as they may be fixed by such corporation. But in the absence of any specific provisions of its charter, nothing will be presumed in favor of the corporation in this regard. It enjoys immunity from governmental control only by being of an express and unequivocal legislative enactment. Without this the right of the legislature, either directly or through the instrumentality of a municipal corporation, to regulate the business of any company acting under a legislative or municipal franchise, is not to be questioned. In the case of Ruggles v. Illinois, Cincinnati. 18 Ohio St. 563; State 59 H. 92; Wilkins v. State, 113 Ind. Ruggles v. Illinois, 108 U. S. 526, 538. Great stress is laid on the fact that this warehouse was erected in 1862, long anterior to the passage of the law and by this kind of legislation the alternative is presented, either to abandon the use of the property for which it was fitted, or to do business for less compensation than its owners had theretofore and always received. In another part of their argument they say that they, by consent of their customers, have received during the past year higher rates of storage than those specified in the act, and so, in this respect, the act is a plain, palpable violation of the clause of the con before the Supreme Court of the United States, the rule. was stated by the court, as follows: "Grants of immunity from legitimate governmental control are never to be presumed. On the contrary, the presumptions are all the stitution relied on.-that depriving them of the value of the use, is depriving them of their property. This argument is answered by what we have already said. It is idle to talk about the consent of their customers to higher rates of charges than this law allows them to receive. Their customers, before this law was enacted, had no protection against these monopolists. They had no consent to give. They were obliged to have their grain taken to these warehouses, and be subjected to such charges as the organized combination, shutting out all competition, might choose to demand. The producer and shipper had no alternative but submission. They were completely in the power of this combination, and it did not fail to demand and exact the highest charges. It is this state of things the law is designed to remedy. One of the first and most imperative duties of the law-making power is, to enact all necessary laws to remedy existing evils, taking care in so doing not to transgress any constitutional limitation. The means by which to do it most effectually is, in the discretion of the legislature, keeping in view the provisions of the organic law. This law in no respect affects the title, possession or use of this warehouse by the plaintiffs in error. It deprives them of nothing they owned and possessed at the time of its enactment. Anticipated profits are not and cannot be held and regarded as property in the owner ship or possession of him who owns the article out of which profits are expected to flow. The property is one thing and remains untouched,— the profits are not in esse, and cannot be claimed as property. When it is said one is deprived of his property, the understanding is. it has been taken away from him.— he is divested of title and possession. This provision in the bill of rights has never been so construed by the courts of any State, whose constitution has such a provision. as to deny to the legislature the power to make all needful rules and regulations respecting the use and enjoyment of property. Ever since the organization of our State government, the legislature has exercised this power unquestioned. Familiar instances are found in regulating public ferries and public mills, and fixing the compensation in the shape of toll. Another is, in delegating power to municipal bodies to regulate charges of hackmen and draymen, and the weight and price of bread. But in a property the most sought after by nearly all classes of community, and deemed the most valuable of any, as it controls all others, the legislative power of every State in the Union has been brought to bear upon it, and no court has ever questioned the right so to do. We allude to the interest laws,-laws declaring at what rate a man may loan his money. The argument used here, it seems to us, would prove all these laws unconstitutional, for they do regulate the use other way, and unless an exemption is clearly established the legislature is free to act on all subjects within its general jurisdiction as the public interests may seem to require. As was said by Chief Justice Taney, speaking for the court, in Charles River Bridge v. Warren Bridge: 'It can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created.' This is an elementary principle. § 147. A Business Juris Publici Distinguished from a Business Juris Privati.—A branch of business, not affected by a public use, is not subject to legislative or municipal control and regulation, and a corporation or individual engaged in such business is not bound to conduct it with reference to the convenience or to the necessities of the public. A business that is, essentially, a private business is not affected by a public use by any extension or enlargement of its operations. A business is affected by a public use, and their business subject to governmental regulation, only as, by the terms of its charter or by the nature of the service rendered, the corporation or the individual by which it is conducted becomes a public servant. In a case in Texas, the rule is stated by the court, as follows: "The business of warehousing and compressing cotton is free to every one who wishes to engage in it. No grant or franchise need be obtained from the State to authorize those desiring to do so to embark in this character of business. It is not one of the employments which the common law declares public. Nor is it claimed to have been made so by statute. And we know of no authority, and none has been shown us, for saying that a business strictly juris privati will become juris publici, merely by reason of its extent. If the magnitude of a particular business is such, and the persons affected by it so of a man's property, they do fix a value upon its use, and, as all observation shows, in most localities, greatly below its market value." Breese, J., in Munn v. People, 69 Ill. 80, 90. 1 Charles River Bridge v. Warren Bridge, 11 Pet. 420, 547. 2 Ruggles v. Illinois, 108 U. S. 526, 531. numerous, that the interest of society demands that the rules and principles applicable to public employments should be applied to it, this would have to be done by the legislature (if not restrained from doing so by the constitution) before a demand for such an use could be enforced by the courts."'1 In a case before the United States Circuit Court for the Eastern District of Tennessee, the rule is stated by Mr. Justice Key in his opinion, as follows: "The control which courts may have over railroads and business incidental to, aud necessary for, their conduct and operation, such as warehousing in our great railroad centers, is based upon public necessity. Railroads do nearly all the business of interior transportation. The public is compelled to use them exclusively. There is scarcely anything to compete with them where they operate. Hence, discriminations or extortion cannot be tolerated in their management. If they refuse like facilities to their shippers, or discriminate in rates or otherwise, courts may compel them to be just. The Ladd v. S. C. P. & M. Co., 53 Tex. 172, 188. "It will readily be admitted that in many instances combinations may be made by parties engaged in a particular trade, or by those who, at the time, have the control of the market for some article of prime necessity, to make most inconceivable exactions for their services, or demand a most extortionate price for their commodities. But certainly this does not change the nature of the employment in which they are engaged, or authorize the court to say, when the business of the parties is strictly private, that it has become public. If the combination is illegal, the parties to it will subject themselves to such penalties as the law imposes, and if the injury to society to be apprehended from such combinations is of a character demanding it, the legislature may, by adequate provision, regulate or prohibit persons from engaging in them. Nor do we say that there may not be instances where, by combination, or even without it, some particular business, by reason of its extent and magnitude, and the great number of persons affected by it, though strictly privati juris under the common law and previous statute, which may be declared publici juris by the legislature. This seems, in effect, what was held by the Supreme Court of the United States to have been done by the legislature of Illinois. (Munn v. Illinois, 94 U. S. 125.) But as this is not the character of this case, we are not called upon to express an authoritative opinion on the point. It is sufficient for us to say that in the absence of legislation to that effect, a party who has not subjected his property and services to public use by the character of the business in which he is engaged, does not do so by reason of combination with others in a like business, though he is enabled thereby to exact from those who employ him unreasonable and extortionate charges for the services rendered. Whether payments made under such circumstances may not be held to have been paid under duress, is another question to be considered hereafter. Nor can it justly be held that the mere extent and magnitude of the business changes a private charge for services into a toll to be regulated by law. Nor, if so, that the court may, in the absence of legislation upon the subject, substitute its judgment as to the proper amount of such toll for the contract of the parties. * * It is not contended by appellant that, as ordinarily conducted, the business of receiving, storing, compressing and delivering cotton is privati juris, which those engaged in it have not the right to fix the rates and conditions upon which it will be conducted. But the argument seems to be that, in view of the necessities of trade, its magnitude and effect upon the interest of the people throughout the State, as well as of those engaged in the business of appellant, it has become of like public interest as other occupations and trades which the law pronounces and holds to be iuris publici. The conclusion sought to be maintained rests upon the hypothesis that whenever it is made to appear that any particular business is of so general public interest as that which the law holds to be juris publici, the courts have the power to so declare and hold it. The case of Munn v. Illinois, 94 U. S. 125, seems to be the authority mainly relied on to support this position. We cannot regard this case as authority for such a doctrine. It was brought to enforce the statute law of the State. The conclusion to be drawn from it is, as we think, that the legislature may declare a particular business publici juris, if the facts and circumstances under which it is conducted justifies and the good of society requires it; but not that the court may so treat it in advance of legislative recognition or declaration. Whether this may be done, even by the legislature, without infringing upon the constitution, need not now be considered. Neither is it necessary for us at present to determine whether the submission of property and service to public use (as there is high authority for holding) is solely dependent upon the fact that those engaged in such business enjoy some franchise. privilege, or immunity from the State, or did so in the early days of the common law when this character was impressed upon their property or service." Ibid., 189, 191. In the Express Cases, 117 U.S. 1, 23, Chief Justice Waite uses this language: "The reason is obvious why special contracts in reference to this business are necessary. The transportation required is of a kind which must, if possible, be had for the most part on passenger trains. It requires not only speed, but reasonable certainty as to the quantity that will be carried at any one time. As the things carried are to be kept in the personal custody of the messenger or other employe of the express company, it is important that a certain amount of car space should be specially set apart for the business, and that this should, as far as practicable, be put in the exclusive possession of the expressman |