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Home > Journals > Michigan Law Review > MLR > Volume 30 > Issue 8 (1932)

 

Abstract

Ever since Munn v. Illinois there has been continuous dispute as to what regulation is deprivation of property without due process of law within the prohibition of the Fourteenth Amendment. In this first case Chief Justice Waite, discussing with approval prior statutes regulating the rates of chimney sweeps and of auctioneers, the price of bread, the charges of draymen and of hackneycabs, concluded that, if these might be regulated, surely so important a matter as the rates of the great grain elevators in Chicago might be subjected to regulation. The position taken was expressed by these sentences: "From this it is apparent that, down to the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular: it simply prevents the states from doing that which will operate as such a deprivation." From the introduction, as an illustration of what might be regulated (an erroneous illustration it now seems), of the phrase from Lord Hale's De Portibus Maris; saying that when property was granted to the public, dedicated to a public use by the owner, it became not merely private property but public, and subject to regulation as such, later discussion by the courts has developed a conception of a class of businesses "affected with a public interest." In the latest case on this subject, New State Ice Co. v. Liebmann, this conception is applied as if there was a definite class, but without explanation of what businesses are comprehended in the class, with the result that the reader feels that he is seeing an excellent example of just what former Justice Holmes cautioned us against in his dissenting opinion in Tyson and Bro. v. Banton. He said: "l think . . . that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain."

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