Affected With a Public Interest

• Author: Harry N. Scheiber
• Pages: 52-53

Page 52

The phrase "affected with a public interest," first used by the Supreme Court in Munn v. Illinois (1877), had a long and distinguished doctrinal lineage in the English COMMON LAW. The fountainhead of the modern development of that phrase was its formulation by Lord Chief Justice Matthew Hale, in his treatise De Jure Maris, written about 1670 and first published in 1787. In this work, Lord Hale discussed the basis for distinguishing property that was strictly private, property that was public in ownership, and an intermediate category of property (such as in navigable waters) that was private in ownership but subject to public use and hence a large measure of public control. In cases of business under a servitude to the public, such as wharves and cranes and ferries, according to Hale, it was legitimate for government to regulate in order to assure that the facilities would be available for "the common use" at rates that would be "reasonable and moderate." Once the public was invited to use such facilities, Hale wrote, "the wharf and the crane and other conveniences are affected with a publick interest, and they cease to be juris privati [a matter of private law] only." (See GRANGER CASES.)

When Chief Justice MORRISON R. WAITE, writing for the majority in Munn, cited Lord Hale, it was for the purpose of upholding rate regulation of grain elevators against a FOURTEENTH AMENDMENT defense that claimed that the elevator operator's vested property rights were being taken without JUST COMPENSATION. Explaining the Munn rule a year later, in his Sinking Fund Cases opinion, Justice JOSEPH P. BRADLEY pinned the "affectation" doctrine squarely to the concept of monopoly. The question in Munn, Bradley contended, was "the extent of the POLICE POWER in cases where the public interest is affected"; and the Court had concluded that regulation was valid when "an employment or business becomes a matter of such public interest and importance as to create a common charge or burden upon the citizens; in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort.?"

In the period immediately following the decision in Munn, the Court erected a series of new doctrinal bulwarks for property interests. Among them were the concept of FREEDOM OF CONTRACT, the requirement that regulation must be "reasonable" as judged by the Court, and the notion of PUBLIC PURPOSE as a test for the validity of tax measures...