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being granted for a specified period the exclusive privilege of having all such animals slaughtered in their establishment, and exacting a certain fee from the owners of animals so slaughtered. In passing upon the constitutionality of this law, the Supreme Court of Illinois pronounced the following opinion : “ The charter authorizes the city authorities to license or regulate such establishments. When that body has made the necessary regulations, required for the health or comfort of the inhabitants, all persons inclined to pursue such an occupation should have an opportunity of conforming to such regulations; otherwise the ordinance would be unreasonable and tend to oppression. Or if they should regard it for the interest of the city that such establishments should be licensed, the ordinance should be so framed that all persons desiring it might obtain licenses by conforming to the prescribed terms and regulations for the government of such business. We regard it neither as a regulation nor a license of a business to confine it to one building or to give it to one individual. Such an action is oppressive, and creates a monopoly that never could have been contemplated by the general assembly. It impairs the rights of all other persons, and cuts them off from a share in not only a legal, but a necessary, business. Whether we consider this as an ordinance or a contract, it is equally unauthorized, as being opposed to the rules governing the adoption of municipal by-laws. The principle of the equality of rights is violated by this contract. If the common council may require all of the animals for the consumption of the city to be slaughtered in a single building, or on a particular lot, and the owner be paid a specific sum for the privilege, what would prevent the making a similar contract with some other person that all of the vegetables or fruits, the flour, the groceries, the dry goods, or other commodities should be sold on his lot and he receive a compensation for the privilege? We can see no difference in principle."

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1 City of Chicago v. Rumpff, 45 III. 90.

This presentation of the subject readily indicates an almost hopeless contradiction of authorities; but it seems to be without doubt, that the doctrine laid down by the Supreme Court of the United States in the Slaughter-house Cases will ultimately come to be recognized as the correct one.

But there is always this limitation to be recognized upon the power to make a monopoly of any trade, to be conducted by itself or by some private individual or corporation to whom it is granted as a privilege, viz. : that the general prosecution of the trade or occupation, by every one who chooses to engage in it, produces injurious results which can only be avoided by making a monopoly of the trade. In all parts of the civilized world, the transportation of the mails has become a government monopoly; and the railroads and the telegraph in Europe are for the most part in the hands of the government. In our own country it has been declared by the Supreme Court of the United States, that it would be a legitimate assumption of power for the United States to make a government monopoly of the management of railroads and the telegraph, and appropriate to its use the existing lines of railroad and telegraph.?

Whether it is impossible for the railroads and telegraph and post-office to be conducted by private individuals or corporations, is a question about which there is a divided

a opinion. In respect to the post-office, the assumption of its management by government is so universal at the present day that the objections to this monopoly are hardly worthy of a serious consideration, for it is firmly rooted in public opinion that this is a legitimate exercise of governmental authority. The same reasons which would justify the post-office monopoly, would be sufficient to establish a claim in favor of a railroad or telegraph monopoly. They are all common means of intercourse and intercom


1 Ch. J. Waite in Pensacola, etc., R. R. Co. v. West. Union Tel. Co., 96 U.S. 1.

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munication among people of the same and of different countries,

and might very properly be compared with the governmental control of the public highways on land and on water. And whatever serious doubts may be entertained by the philosopher and student concerning the legal propriety of such government monopolies; in these days of labor agitation and gigantic railroad and telegraph combinations, when a collision between the capitalist and the workingman stops the wheels of commerce, and brings all commercial intercourse to an end as long as the disagreement continues, public opinion will be very willing to indorse any reasonable proposition to place the management of railroads and telegraphs in the hands of the national government.

But the application of this principle to practical politics is very likely to result in an abuse of it, and the student of European politics meets with all sorts of monopolies, almost as varied and numerous as they were in France under the ancient régime, the only difference being that the general government, and not the privileged classes, own the monopolies. Thus, for example, in most of the European States, the preparation and manufacture of tobacco and cigars has been made a government monopoly. The real object of the monopoly is to increase the revenue of the country, but on no principle of constitutional law could such a monopoly be justified. There may in the future be attempts in this country to create monoplies out of trades and occupations, the prosecution of which by private individuals and corporations would not necessarily inflict injury upon the public. But a resort to the courts will furnish an ample remedy, if public opinion has not grown accustomed to a disregard of constitutional limitations and the rights of individuals.

§ 105



SECTION 115. What is meant by “private property in land?”

116. Regulation of estates – Vested rights.
117. Interests of expectancy.
118. Limitation of the right of acquisition.
119. Regulation of the right of alienation.
120. Involuntary alienation.
121. Eminent domain.
121a. Exercise of power regulated by legislature.
1216. Public purpose, what is a.
121c. What property may be taken.
121d. What constitutes a laking.
12le. Compensation, how ascertained.

122. Regulation of the use of lands — What is a nuisance?
122a. What is a nuisance, a judicial question.
1226. Unwholesome trades in tenement houses may be prohibited.
122c. Confinement of objectionable trades to certain localities.
122d. Regulation of burial grounds.
122e. Laws regulating the construction of wooden buildings.
1225. Regulation of right to hunt game.
122g. Abatement of nuisances — Destruction of buildings.
123. How far the use of land may be controlled by the require-

ment of license.
124. Improvement of property at the expense, and against the

will, of the owner.
125. Regulation of non-navigable streams — Fisheries.
125a. Conversion of non-navigable into navigable streams.
126. Statutory liability of lessors for the acts of lessees.
127. Search warrants.
128. Quartering soldiers in private dwellings.
129. Taxation.

§ 115. What is meant by “private property in land? ” — An accurate answer to this question is exceedingly important, because attacks have repeatedly been made upon the existing land tenure of England and the United States by political economists, as being the chief cause of human woes; and promises are made of the advent of an era of universal prosperity, only a little short of millenium, if private property in land be only abolished. The latest writer upon this subject, Mr. Henry George, has created no little stir by his vigorous attacks upon private property in land, and has succeeded, in no small degree, in unsettling preconceived notions of the right to own land. Our interest in this connection, as a jurist and a student of police economics, lies chiefly in Mr. George's conceptions of the existing law of real property, and the meaning he and other political economists attach to the phrase “ private property in land.” If we have not mistaken the writer's main idea, it is no less and no more than what is set forth by Mr. Herbert Spencer in his Social Statics,' with a greater display of rhetoric, however, and an elaborate scheme for the confiscation of the so-called “private property in land.” Both writers present their views under the impression that the existing law recognizes an absolute right of private property in land, and they both propose that this private property be abolished, and land become the common property of all, of the State or society.

Mr. Spencer's entire argument is based upon his first principle of sociology: “Every man has freedom to do all that he wills provided he infringes not the equal freedom of any other man,” and in applying this principle — which we most heartily indorse as the ruling principle of police power in the United States, and the necessary fundamental principle in every system of sociology in a free State - to the right of property in land, he maintains that no one “ may use the earth in such a way as to prevent the rest from similarly using it ; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law.” Both writers maintain that land is the free gift of nature, and must ever remain the inalienable property of society. But Mr. Spencer, readily perceiving the practical


pp. 130-144.
See ante, secs. 1, 2.

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