Page:The Green Bag (1889–1914), Volume 14.pdf/562

 The Coal Mines and the Law.

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Munn v. Illinois must be employed with the in the construction of a sawmill, a private greatest caution. The distinction involved object — Allen v. Jay, 60 Me. 1 24. In every in that case between the public calling — the instance it will be seen the decision turns exception—and the private calling — the rule upon public calling or private calling. — is one of most consequence. This distinc An enlargement of this class of public tion, unfortunately, is obscured at the outset utilities, upon which much stress is laid in this pamphlet by the propounding of the throughout in this pamphlet, is by proposing doctrine that the ownership of any property invitation of the public as the test (p. 12is not absolute; since "All real estate of what 13): " Whoever so conducts his property or ever character is subject to the right of the his business as to enter into relations with public in many respects to restrict the use of the public, and leads them to depend upon it, or to require affirmative action in respect his services and the use of his property, to it on the part of the owner" (p. 12). It is thenceforth holds his property and his ser true as an abstraction that absolute property vices no longer as private property, but sub rights cannot exist in organized society; and ject to a superior and dominating interest in yet by comparison with the qualified rights the public, that is to say, holds them in trust in public employment the rights guaranteed for the public, and subject to public control." in private business seem complete. Such is the proposition as elaborated. This Two cases may illustrate this difference at again confuses the issue. common law. In the first, a traveller knocks If profession to serve the public be the test, at the door of an inn; the landlord orders how must this case be decided upon demurrer : him to be gone; that is so grave a violation A doctor holds himself out to serve every one of public duty that it is a crime — Rex v. in his town; he is sent for to attend a man Ivens, 7 C. & P. 213. In the second, an un stricken with violent illness; he refuses to dertaker refuses to sell a coffin because the go; and it is alleged that thereby the man customer is already indebted to him; that is died without any fault of his whatever? The within his private right, to refuse any one — decision is that all this sets forth no cause of Brewster v. Miller, 101 Ky. 275. These are action, for notwithstanding the public profirst principles. ' fession, this is recognized as a private calling The same distinction is found of impor — Hurley v. Huddingfield, 156 Ind. 416. tance in the determination of the constitu In the same way, consider the case of the tionality or unconstitutionality of statutes. department store; there the public are solic Thus in an early case it is admitted that the ited by every wile to come, and yet clearly power of eminent domain can be granted for when it comers to a determination whether a water-works, since this is a public object — this be public calling or private calling, it Lumbard v. Stearns, 4 Cush. 60. Whilst in must be held private calling, else all busi a later case it is held that the power cannot nesses would be drawn into the net — Chi cago v. Netcher, 183 Ill. 104. One other be given such an enterprise as a private rail way — In the matter of the Niagara Railway, case — an establishment for pressing cotton in Galveston which is accustomed to serve 108 N. Y. 375. It is, again, the same prin ciple which leads the courts to allow the use all customers that apply, makes a schedule with an extra arbitrary charge; but that is of public funds to operate a municipal gas works, a public purpose — State v. Toledo, held to be within its rights, since it is a 48 Oh. St. 112; but forbids taxation to aid private business, however important it may