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Subject Area: Law
Topic: The American Revolution and Constitution

§ 95.: Compulsory formation of business relations—Common carriers and innkeepers exceptions to the rule—Theaters and other places of amusement.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 95.

Compulsory formation of business relations—Common carriers and innkeepers exceptions to the rule—Theaters and other places of amusement.—

It is a part of civil liberty to have business relations with whom one pleases. Judge Cooley says: “It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice.”1 Business relations must be voluntary in order to be consistent with civil liberty. An attempt of the State to compel one man to enter into business relations with another, can only be justified by some public reason or necessity. In an ordinary private business relation, the State cannot constitutionally interfere, whatever reason may be assigned for one’s refusal to have dealings with another. It is no concern of the State or of the individual, what those reasons are. It is his constitutional right to refuse to have business relations with a particular individual, with or without reason. But there are cases in which it has long been held to be within the scope of legislative authority to interfere with, and compel, the formation of business relations. The common law of England, and of this country, has for centuries justified this power of control over common carriers and innkeepers. No man is compelled to become a common carrier or innkeeper; but if he holds himself out to the world as such, he is obliged to enter into business relations with all, under impartial and reasonable regulations. The common carrier must carry for all, within his regular line of business, and the innkeeper must provide accommodation for all who come to him, as long as he has room for them. These two cases have for so long a time been recognized as exceptions to the general rule, in respect to the voluntary character of business relations, that the reasons for them are rarely, if ever, demanded, and certainly not questioned. But a determination of the constitutional reasons for these exceptions, if there are any, will help to discover the limitations of legislative power in respect to other kinds of business. It is stated usually, that the business of a common carrier is a quasi public business, meaning that the public have some rights in it, as, for example, the right to a compulsory formation of business relations, which they do not possess in respect to a purely private business. But that is rather a statement of what is, rather than a reason for its existence. A similar statement is usually made in regard to the peculiar liability of innkeepers, and ordinarily deemed sufficient. But if this regulation of the business of a common carrier, and of an innkeeper, is justifiable under our constitutional limitations, there must be some good public reason for the regulation, and not merely a matter of public convenience. Where the common carrier enjoys, in the prosecution of his business, unusual privileges or franchises, as in the case of railroads, ferries, street car companies and the like,1 one need not go further for a reason to justify such a police regulation. Since the State grants the common carrier a privilege, not equally enjoyed by others, for the promotion of the public convenience, it might very well arrange for the impartial carriage of all, under reasonable regulations. And inasmuch as the common carriers, who do not have any special privileges, like hackmen, draymen, and drivers of express and furniture wagons, make a special use of a general privilege, in plying their trade, it may not be unreasonable for the State to compel them to carry all who may offer themselves or their goods. But no such reasons can be assigned for a similar regulation of innkeepers. They enjoy no privileges of any kind. Every man has a natural right to keep an inn, provided he so conducts it as not to violate the rights of others, or to constitute a public nuisance. If the business was of such a nature, that for the protection of the public from injury it is necessary to make a monopoly and grant it to one or more, as a special privilege,2 then it would be the duty of the State to provide for the impartial entertainment of all who present themselves, and comply with the reasonable regulations of the inn. But the inn is no more likely to be productive of public injury than is the boarding house, from which the inn is distinguished. The keeper of a boarding house is not obliged to receive as a guest any one who comes. The threatening danger to the public, arising from the improper conduct of the inn, is, therefore, not the reason for the rule of law, which obliges the innkeeper to receive as his guest, any traveler of decent behavior, who may apply. The object of the rule is to make it convenient for travelers to find lodging upon arriving in a strange place. It is a worthy object, but no man can be compelled to lodge another, simply because he is a traveler, and a stranger. No sufficient reason can be assigned; unless the reason, given by Chief Justice Waite in a later case,1 may be accepted as a proper one. He says: “Looking to the common law, from whence came the right which the constitution protects, we find that when private property is affected with a public interest, it ceases to be juris privati only. This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest, when used in a manner to make it of public consequence, and affect the community at large. When, therefore, 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, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”2 In this case, the business in question was the storage of grain in bulk in the Chicago elevators. As applied to the particular case, the rule thus laid down by Chief Justice Waite would give to the legislature the right to regulate any business, which should become a public necessity. The public utility of the business clothes it with a public interest, and authorizes police regulation to prevent imposition or oppression where the business becomes a virtual monopoly.1 It is unquestionable that the State can, and indeed it is its duty to, subject to police control a monopoly, created by law; but in this case it is laid down for the first time that where the circumstances, surrounding a particular business, or its character, make it a “virtual monopoly,” the State can regulate the conduct of the business, so that all having concern in it, will be treated impartially and fairly. I say this rule has been laid down for the first time, although the chief justice refers to it as a long established rule, and refers to Lord Hale as his authority. A careful study of Hale’s writings will disclose the fact that to no case does he refer in which the business does not under the law constitute a privilege, more or less of a legal monopoly. There is nothing in his writings to justify the application of his rule or his reasoning to a business, which is a virtual monopoly, but is not made so by law.1

But even this is not a satisfactory reason for compelling all innkeepers to receive all guests applying to them at the present day. Perhaps at an early day, when the number of travelers was limited, and was not large enough to support more than one inn in most places, innkeeping may have been a virtual monopoly. But that town is very small, in this country, which cannot boast of at least two inns, and the actual rivalry and competition to secure guests will dispel all notions of a virtual monopoly. No reason but public convenience can be suggested for the existence of this law in respect to innkeepers, and it is by no means a satisfactory one. The public convenience can never justify the interference of the State with one’s private business.

Of late a disposition to bring within this category the theaters and other places of public amusements has been displayed by legislatures, both State and national, in order to prevent discrimination by the managers and proprietors of such places against the negro, “on account of his race, color, or previous condition of servitude.” The United States statute, which has lately been declared to be unconstitutional, because the law encroaches upon the domain of the State legislatures,2 and which corresponds in all essential particulars to the State statutes on the same subject, provided “that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land and water, theaters and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” So far as these statutes refer to the enjoyment of the privileges of inns and public conveyances, they merely affirm the common law, and grant no new right. But in respect to theaters and other places of public amusement, the regulation is certainly novel. The only legal reason for the regulation is public convenience, unless the circumstances are such that the business becomes a virtual monopoly. And to justify the regulation on these grounds is certainly, going very far toward removing all limitation upon the power of the State to regulate the private business of an individual. In the Supreme Court case,1 Chief Justice Waite justifies the police control of “a virtual monopoly,” on the ground that the use of the elevator is a public necessity to all merchants, who are engaged in the shipment of grain through Chicago to all points of the country. So, also, may the entertainment at an inn be considered a public necessity to all travelers. But attendance upon theatrical and other public amusements can in no sense be considered a necessity, nor is the business a franchise or legal monopoly. Such legislation should, therefore, be condemned as unconstitutional. But it has been sustained in some cases against all objections,2 and Judge Cooley justifies it in the following language: “Theaters and other places of public amusement exist wholly under the authority and protection of State laws; their managers are commonly licensed by the State, and in conferring the license it is no doubt competent for the State to impose the condition that the proprietors shall admit and accommodate all persons impartially. Therefore, State regulations corresponding to those established by Congress must be clearly within the competency of the legislature, and might be established as suitable regulations of police.”1

In a recent case, in which an alien seaman was forced to ship in an American vessel against his will, and in the absence of any contract, it was held that his forced service on the ship was violative of the thirteenth amendment of the United States Constitution.2

[1]Cooley on Torts, p. 278.

[1]See post, §§ 208-214.

[2]See post, § 127.

[1]Munn v. Illinois, 94 U. S. 113.

[2]pp. 125, 126.

[1]“In this connection it must also be borne in mind that, although in 1874, there were in Chicago fourteen warehouses adapted to this particular business, and owned by about thirty persons, nine business firms controlled them, and that the prices charged and received for storage were such as have been from year to year agreed upon and established by the different elevators or warehouses in the city of Chicago, and which rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication. Thus it is apparent that all the elevating facilities through which these vast productions of seven or eight great States of the West must pass on the way to four or five of the States on the seashore may be a ‘virtual’ monopoly.

“Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfman, or the baker, or the cartman, or the hackney coachman, pursues a public employment and exercises ‘a sort of public office,’ these plaintiffs in error do not. They stand, to use again the language of their counsel, in the very ‘gateway of commerce,’ and take toll from all who pass. Their business most certainly ‘tends to a common charge, and is become a thing of public interest and use.’ * * * Certainly, if any business can be clothed ‘with a public interest, and cease to be juris privati only, this has been.” Opinion of Waite, Ch. J., supra. See post, § 93, for extracts from the dissenting opinion of Justice Field.

[1]See post, § 96, for lengthy quotations from Lord Hale.

[2]See Civil Rights Cases, 109 U. S. 3.

[1]Munn v. Illinois, supra.

[2]Donnell v. State, 48 Miss. 661; People v. King, 110 N. Y. 418; Bryan v. Adler, 97 Wis. 124.

[1]Cooley on Torts, p. 285. See post, § 101, concerning licenses as police regulations.

[2]In re Chung Fat, 96 Fed. 202.