The main question involved in these cases is whether this court will adhere to its decision in Munn v. Illinois, 94 U.S. 113.
The court of appeals of New York, in People v. Budd, 117 N. Y. 1, 22 N. E. Rep. 670, held that chapter 581 of the Laws of 1888 did not violate the constitutional guaranty protecting private property, but was a legitimate exercise of the police power of the state over a business affected with a public interest. In regard to the indictment against Budd, it held that the charge of exacting more than the statute rate for elevating was proved, and that as to the alleged overcharge for shoveling, it appeared that the carrier was compelled to pay $4 for each 1,000 bushels of grain, which was the charge of the shovelers' union, by which the work was performed, and that the union paid the elevator, for the use of the latter's steamshovel, $1.75 for each 1,000 bushels. The court held that there was no error in submitting to the jury the question as to the overcharge for shoveling; that the intention of the statute was to confine the charge to the 'actual cost' of the outside labor required; and that a violation of the act in that particular was proved; but that, as the verdict and sentence were justified by proof of the overcharge for elevating, even if the alleged overcharge for shoveling was not made out, the ruling of the superior court of Buffalo could not have prejudiced Budd. Of course, this court, in these cases, can consider only the federal questions involved.
It is claimed, on behalf of Budd, that the statute of the state of New York is unconstitutional, because contrary to the provisions of section 1 of the fourteenth amendment to the constitution of the United States, in depriving the citizen of his property without due process of law; that it is unconstitutional in fixing the maximum charge for elevating, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses at five-eighths of one cent a bushel, and in forbidding the citizen to make any profit upon the use of his property or labor; and that the police power of the state extends only to property or business which is devoted by its owner to the public by a grant to the public of the right to demand its use. It is claimed on behalf of Annan and Pinto that floating and stationary elevators in the port of New York are private property, not affected with any public interest, and not subject to the regulation of rates.
'Trimming' in the canal-boat, spoken of in the statute, is shoveling the grain from one place to another, and is done by longshoremen with scoops or shovels; and 'trimming' the ship's cargo when loading is stowing it and securing it for the voyage. Floating elevators are, primarily, boats. Some are scows, and have to be towed from place to place by steam tugs; but the majority are propellers. When the floating elevator arrives at the ship, and makes fast along-side of her, the canal-boat carrying the grain is made fast on the other side of the elevator. A long wooden tube, called 'the leg of the elevator,' and spoken of in the statute, is lowered from the tower of the elevator so that its lower end enters the hold of the canal-boat in the midst of the grain. The 'spout' of the elevator is lowered into the ship's hold. The machinery of the elevator is then set in motion, the grain is elevated out of the canal-boat, received and weighed in the elevator, and discharged into the ship. The grain is lifted in 'buckets' fastened to an endless belt, which moves up and down in the leg of the elevator. The lower end of the leg is buried in the grain so that the buckets are submerged in it. As the belt moves, each bucket goes up full of grain, and at the upper and of the leg, in the elevator tower, empties its contents into the hopper which receives the grain. The operation would cease unless the grain was trimmed or shoveled to the leg as fast as it is carried up by the buckets. There is a gang of longshoremen who shovel the grain from all parts of the hold of the canal-boat to 'the leg of the elevator,' so that the buckets may be always covered with grain at the lower end of the leg. This 'trimming or shoveling to the leg of the elevator,' when the canal-boat is unloading, is that part of the work which the elevator owner is required to do at the 'actual cost.'