and Mary regulating the
charges of common carriers--and our readers will remember many
more--and the case of cabmen whose charges are regulated by city
ordinances--but they are given stands or 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 kin