Contemporary American History, 1877-1913Beard, Charles A. (Charles Austin)
History
Contemporary American History, 1877-1913
Beard, Charles A. (Charles Austin)
United States -- History -- 1865-1921
But it was insisted on behalf of the plaintiffs that the owner of
property is entitled to a reasonable compensation for its use even when
it is clothed with the public interest, and that the determination of
what is reasonable is a _judicial, not a legislative_, matter. To this
Chief Justice Waite replied that the usual practice had been otherwise.
"In countries where the common law prevails," he said, "it has been
customary from time immemorial for the legislature to declare what shall
be a reasonable compensation under such circumstances, or perhaps more
properly speaking to fix a maximum beyond which any charge made would be
unreasonable.... The controlling fact is the power to regulate at all.
If that exists, the right to establish the maximum of charge as one of
the means of regulation is implied. In fact, the common law rule which
requires the charge to be reasonable is itself a regulation as to
price.... To limit the rate of charge for services rendered in a public
employment, or for the use of property in which the public has an
interest, is only changing a regulation which existed before. It
establishes no new principle in the law, but only gives a new effect to
an old one. We know that this is a power which may be abused; but that
is no argument against its existence. _For protection against abuses by
legislatures the people must resort to the polls, not to the
courts._"[20]
The principle involved in the Munn case also came up in the same year
(1876) in Peik _v._ Chicago and Northwestern Railroad Company, in which
Chief Justice Waite, speaking of an act of Wisconsin limiting passenger
and freight charges on railroads in the state, said: "As to the claim
that the courts must decide what is reasonable and not the legislature,
this is not new to this case. It has been fully considered in Munn _v._
Illinois. Where property has been clothed with a public interest, the
legislature may fix a limit to that which shall be in law reasonable for
its use. This limit binds the courts as well as the people. If it has
been improperly fixed, the legislature, not the courts, must be appealed
to for the change."
The total results of the several Granger cases, decided in 1876, may be
summed up as follows:
(1) That the regulatory power of the state over "public callings" is not
limited to those businesses over which it was exercised at common law,
but extends to any business in which, because of its necessary character
and the possibilities for extortion afforded by monopolistic control,
the public has an interest.
(2) That such regulatory power will not be presumed to have been
contracted away by any legislature, unless such intention is
unequivocally expressed.
(3) That the exercise of such regulatory power belongs to the
legislature, and not to the judiciary.
(4) And the _dictum_ that the judiciary can grant no relief from an
unjust exercise of this regulatory power by the legislature.
Public-domain text, read in full here on John Shaqi.
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