exclusive privileges in the streets—­the chief justice concluded with the startling proposition that “if they do not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns.”  But the public has an interest, as was afterward pointed out in dissenting opinions, in the price of shoes; yet it has never been supposed that that gave any power of legal regulation of factory prices.  A still stronger case is that of inns or hotels, which have always been “a public avocation.”  They have had to take in all travellers without discrimination; yet there is not a vestige of legislation in the English statute-book regulating the prices to be charged by hotels.  Indeed in early times most employments—­millers, barbers, bakers—­were public in the sense that the man could not refuse a job; yet their prices were never regulated.  Yet it was upon this phrase, “public employment” or “private property affected with a public interest,” taken from the opinion of Justice LeBlanc in the London Dock Company case, decided in 1810, without its context, that the chief justice built up the whole reason of his decision.  The decision in Munn v. Illinois, subject to court review as to whether the rate be confiscatory, remains good law, but the opinion is still open to question; and indeed the most recent decisions of the Supreme Court show a desire to get away from it.

Some writers endeavor to justify, under our constitutions, the regulation of rates by the principle of eminent domain; but this source seems far-fetched and unnecessary.  It is, of course, done under the police power; but the precedent for that use of the police power is to be found in the history of English law and statutes.  Thus we have noted in the Statute of Westminster I, A.D. 1275, that excessive toll contrary to the common custom of the realm was forbidden in market towns.  The very phraseology of this statute indicates the antiquity of the doctrine that tolls must be reasonable; but “toll” was always a technical term, not for ordinary prices of commodities, but for a use or service which was in some way dependent upon law or ordinance.  In the very opinion of Chief Justice Waite, he quotes Lord Hale, saying that the king “has a right of franchise or privilege, that no man may set up a common ferry without a prescription time out of mind, or a charter from the king,” and so later he quotes Lord Hale as saying that the same principle applies to a public wharf “because they are the wharves only licensed by the king.”  We also found legislation fixing rents and so on in staple towns, and consequently of the charges of property owners therein, such towns having grant of a special privilege.  The early law books are full of cases showing that discrimination and extortion were unlawful, even criminal, offences.  And finally, as Chief Justice Waite points out, we find the rates of carriers fixed by law in 1691.  Ordinary carriers, not having the right of eminent domain such as express companies, might to-day be considered to have no legal monopoly, and indeed, possibly for that reason, the regulation of charges of express companies has not yet been attempted; but in King William’s time it was doubtless considered that the carriers had special privileges on the highways, as indeed they did.