Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/492

 § 476.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. § 476. These remarks are undoubtedly sound as far as they go. The real difficulty, however, is to draw a line between property in the management of which the public has a clearly defined interest, and property in regard to which it has none. "Where the property in question is that of a cor- poration, the interest of the public might be roughly said to be coextensive with the grant to the corporation of powers which it would be unconstitutional or improper for the legis- lature to grant, except for purposes in the attainment of which the public was directly concerned. For instance, it is ordi- narily incompetent for the legislature to grant the right of taking private property on compulsory process except for the attainment of an object of public importance. 1 Accordingly, as this right is ordinarily granted to a railroad corporation, the possession of the right by such corporation would seem to indicate a clear interest on the part of the public in its affairs. This is a clear case of a defined public interest in a private enterprise. But such a test, taken by itself, is not applica- ble to all cases ; for the public is sometimes held to have an interest in enterprises where no such extraordinary powers have been granted, as, for instance, in the grain elevator case, whence the foregoing extract is taken. The truth of the mat- ter seems to be, that what may constitute such an interest of the public in private enterprises as will warrant the regulation of them by the police power of the state, is essentially incapa- ble of definition. The Chief Justice says: "When, there- fore, 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." What is "a use in which the public has an inter- est" ? To this question the remarks of the Chief Justice give no answer. In any private business, as the manufacture of soap, the public has always at least this negative interest that the business shall not be carried on in such a way as to become a public nuisance. Yet the business of manufacturing soap is as private as any business can be. Take for another exam- ple, the business of supplying milk in a city. This is a 1 See Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 73; Ten Eyck u. Delaware, etc., Canal Co., 18 N. J. Law, 200; Bloodgood 472 v. Mohawk and Hudson R. R. Co., 18 Wend. 9, 55; Edgewood R. R. Co.'s Appeal, 79 Pa. St. 257.