Butchers' Union Slaughter-House Live-Stock Landing Company v. Crescent Slaughter-House Company/Concurrence Bradley

BRADLEY, J.

I concur in the judgment of the court in this case, reversing the judgment of the circuit court. I think that the act of the legislature of Louisiana incorporating the Crescent City Live-stock Landing & Slaughter-house Company, and granting to said company for 25 years the exclusive right to erect and maintain stock-landings and slaughter-houses within the limits of the parishes of Orleans, Jefferson, and St. Bernard was not a valid contract, binding upon the state of Louisiana, and protected by the constitution of the United States from alteration or repeal; but my reasons for this opinion are different from those stated in the opinion of the court. They are not based on the ground that the act was a police regulation. The monopoly clause in the act was clearly not such. It had nothing of the character of a police regulation. That part of the act which regulated the position on the river, relatively to the city of New Orleans, in which slaughter-houses and stock landings should be built, was a police regulation, proper and necessary to prevent the offal of such establishments from floating on the water in front of the city. But such a regulation could be complied with by any butcher erecting a slaughter-house, or by any wharfinger erecting a stock landing; and so could every other real police regulation contained in the act. The police regulations proper were hitched on to the charter as a pretext. The exclusive right given to the company had nothing of police regulation about it whatever. It was the creation of a mere monopoly, and nothing else; a monopoly without consideration and against common right; a monopoly of an ordinary employment and business, which no legislature has power to farm out by contract. Suppose a law should be passed forbidding the erection of any bakery or brewery or soap manufactory within the fire-district, or any other prescribed limits in a large city. That would clearly be a police regulation; but would it be a police regulation to attach to such a law the grant to a single corporation or person of the exclusive right to erect bakeries, breweries, or soap manufactories at any place within 10 miles of the city? Every one would cry out against it as a pretense and an outrage.

I hold it to be an incontrovertible proposition of both English and American public law, that all mere monopolies are odious, and against common right. The practice of granting them in the time of Elizabeth came near creating a revolution. But parliament, then the vindicator of the public liberties, intervened, and passed the act against monopolies. 21 Jas. I. c. 3. The courts had previously, in the last year of Elizabeth, in the great Case of Monopolies, 11 Rep. 84b, decided against the legality of royal grants of this kind. That was only the case of the sole privilege of making cards within the realm; but it was decided on the general principle that all monopoly patents were void, both at common law and by statute, unless granted to the introducerof a new trade or engine, and then for a reasonable time only; that all trades, as well mechanical as others, which prevent idleness, and enable men to maintain themselves and their families, are profitable to the commonwealth, and therefore the grant of the sole exercise thereof is against not only the common law, 'but the benefit and liberty of the subject.' It was in view of this decision, and in accordance with the principles established by it, that the act of 21 Jas. I. was passed abolishing all monopolies, with the exception f 'letters patent and grants of privileges, for the term of fourteen years or under, of the sole working or vending of any manner of new manufactures to the true and first inventor and inventors of such manufactures, which others, at the time of making such letters patent and grants, shall not us.' As a mere declaration of the common and statute law of England, the Case of Monopolies, and the act of 21 Jas. I., would have but little influence on the question before us, which concerns the power of the legislature of a state to create a monopoly. But those public transactions have a much greater weight than as mere declarations and enactments of municipal law. They form one of the constitutional landmarks of British liberty, like the petition of right, the habeas corpus act, and other great constitutional acts of parliament. They established and declared one of the inalienable rights of freemen which our ancestors brought with them to this country. The right to follow any of the common occupations of life is an inalienable right, it was formulated as such under the phrase 'pursuit of happiness' in the declaration of independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen. To deny it to all but a few favored individuals, by investing the latter with a monopoly, is to invade one of the fundamental privileges of the citizen, contrary not only to common right, but, as I think, to the express words of the constitution. It is what no legislature has a right to do; and no contract to that end can be binding on subsequent legislatures.

I do not mean to say that there are no exclusive rights which can be granted, or that there are not many regulative restraints on civil action which may be imposed by law. There are such. The granting of patents for inventions, and copyrights for books, is one instance already referred to. This is done upon a fair consideration, and upon grounds of public policy. Society gives to the inventor or author the exclusive benefit for a time of that which, but for him, would not, or might not, have existed; and thus not only repays him, but encourages others to apply their powers for the public utility. So, an exclusive right to use franchises, which could not be exercised without legislative grant, may be given; such as that of constructing and operating public works, railroads, ferries, etc. In such cases a part of the public duty is farmed out to those willing to undertake the burden for the profit incidentally arising from it. So, licenses may be properly required in the pursuit of many professions and avocations which require peculiar skill or supervision for the public welfare. But in such cases there is no real monopoly. The profession or avocation is open to all alike who will prepare themselves with the requisite qualifications, or give the requisite security for preserving public order; except in certain cases, such as the sale of intoxicating drinks, where the interests of society require regulation as to the mumber of establishments, as well as the character of those who carry them on. All such regulations as are here enumerated are entirely competent to the legislature to make. But this concession does not in the slightest degree affect the proposition, (which I deem a fundamental one,) that the ordinary pursuits of life, forming the large mass of industrial avocations, are and ought to be free and open to all, subject only to such general regulations, applying equally to all, as the general good may demand; and the grant to a favored few of a monopoly in any of these common callings is necessarily an outrage upon the liberty of the citizen as exhibited in one of its most important aspects,-the liberty of pursuit. But why is such a grant beyond the legislative power, and contrary to the constitution? The four eenth amendment of the constitution, after declaring that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside, goes on the declare that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.' I hold that a legislative grant, such as that given to the appellees in this case, is an infringement of each of these prohibitions. It abridges the privileges of citizens of the United States; it deprives them of a portion of their liberty and property without due process of law; and it denies to them the equal protection of the laws.

1. I hold that the liberty of pursuit-the right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States. It was held by a majority of the court in the former decision of the Slaughter-house Cases, 16 Wall. 57, that the 'privileges and immunities of citizens of the United States,' mentioned and referred to in the fourteenth amendment, are only those privileges and immunities which were created by the constitution of the United States, and grew out of it, or out of laws passed in pursuance of it. I then held, and still hold, that the phrase has a broader meaning; that it includes those fundamental privileges and immunities which belong essentially to the citizens of every free government, among which Mr. Justice WASHINGTON enumerates the right of protection; the right to pursue and obtain happiness and safety; the right to pass through and reside in any state for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; and to take, hold, and dispose of property, either real or personal. Corfield v. Corryell, 4 Wash. C. C. 381. These rights are different from the concrete rights which a man may have to a specific chattel or a piece of land, or to the performance by another of a particular contract, or to damages for a particular wrong, all which may be invaded by individuals; they are the capacity, power, or privilege of having and enjoying those concrete rights, and of maintaining them in the courts, which capacity, power, or privilege can only be invaded by the state. These primordial and fundamental rights are 'the privileges and immunities of citizens' which are referred to in the fourth article of the constitution and in the fourteenth amendment to it. In the former, it is declared that 'the citizens of each state shall be entitled to ALL PRIVILEGES AND IMMUNITIES OF CITIZENS in the several states; that is, in the other states. It was this declaration which Justice WASHINGTON was expounding when he defined what was meant by 'privileges and immunities of citizens.' The fourteenth amendment goes further, and declares that 'no state shall abridge the privileges and immunities of citizens of the United States;' which includes the citizens of the state itself, as well as the citizens of other states. In my opinion, therefore, the law which created the monopoly in question did abridge the privileges of all other citizens, when it gave to the appellees the sole power to have and maintain stock landings and slaughter-houses within the territory named, because these are among those ordinary pursuits and callings which every citizen has a right to follow if he will, subject, of course, to regulations equally open to all.

2. But if it does not abridge the privileges and immunities of a citizen of the United States of prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty, for it takes from him the fre dom of adopting and following the pursuit which he prefers, which, as already intimated, is a material part of the liberty of the citizen. And if a man's right to his calling is property, as many maintain, then those who had already adopted the prohibited pursuits in New Orleans were deprived by the law in question of their property as well as their liberty without due process of law.

3. But still more apparent is the violation, by this monopoly law, of the last clause of the section,-'no state shall deny to any person the equal protection of the laws.' If it is not a denial of the equal protection of the laws to grant to one man or set of men the privilege of following an ordinary calling in a large community and to deny it to all others, it is difficult to understand what would come within the constitutional prohibition. Monopolies are the bane of our body politic at the present day. In the eager pursuit of gain they are sought in every direction. They exhibit themselves in corners in the stock market and produce market, and in many other ways. If by legislative enactment they can be carried into the common avocations and callings of life, so as to cut off the right of the citizen to choose his avocation, the right to earn his bread by the trade which he has learned,-and if there is no constitutional means of putting a check to such enormity, I can only say that it is time the constitution was still further amended. In my judgment, the present constitution is amply sufficient for the protection of the people if it is fairly interpreted and faithfully enforced.

HARLAN and WOODS, JJ., concur.