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. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use."

While it may be true, that there may be found only a single English statute prescribing rates of one engaged in public employment, there have been numberless decisions in regard to charges made by carriers, innkeepers and the like and their duty to serve the public when properly applied to for a reasonable charge, and as the court says this is "itself a regulation as to price." If, however, reasonableness arises out of the obligation to serve, as a principle of law, this does not necessarily show, that what is reasonable may be within legislative competency and it is admitted that if the legislature does not act it is a judicial question. We are, then, referred to the practice at common law, shown as above stated.

Nearly a half century before the Munn case was decided Chanellor Walworth, in speaking of the franchise to a railroad, said: "The legislature may also, from time to time, regulate the use of the franchise, and limit the amount of the toll which it shall be lawful to take, in the same manner as they may regulate the amount of the tolls to be taken at a ferry, or for grinding at a mill, unles they have deprived themselves of that power by a legislative contract with the owners of the road."" This may be thought to arise out of the interest of the public, not only in the use of

2 Beekman v. Saratoga & S. R. R. Co., 3 Paige, ch. 43, 22 Am. Dec.

679.

franchise, but its police power is concerned in a reasonable rate, and a legislature may say what rate above a maximum may interfere with due regard for that power. In exercising police power there is, of course, governmental action.

Succeeding the Munn case another case3 distinctly referred to an English statute enacted in 1691 and remaining in force until 1827 as proof of legislative power to prescribe a maximum rate. This principle was affirmed afterward. The Budd case, supra, distinguishes a case, referring to elevator charges by saying that, "what was said in the opinion in 134 U. S. as to the question of the reasonableness of the rate of charge being one for judicial investigation, had no reference to the case where the rates are prescribed directly by the legislature." While as to exercise of a police power it would be clear that the state would be acting governmentally in fixing rates, yet our Supreme Court decided the question as being in accordance with immemorial practice, in other words, the practice at common law as inherited by us and pursued by the states.

§ 112. Review by Courts of Legislative Rates.—In a case by the Supreme Court still later than any of the above, it was said: "It is doubtless true as a general

6

3 Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L. Ed. 94.

4 Winona & St. P. R. Co. v. Blake, 94 U. S. 180, 24 L. Ed. 99; Ruggles v. Illinois, 108 U. S. 526, 531, 2 Sup. Ct. 832, 27 L. Ed. 812; Dow v. Beidelman, 125 U. S. 680, 687, 8 Sup. Ct. 1028, 31 L. Ed. 841; Budd v. New York, 143 U. S. 517, 547, 12 Sup. Ct. 468, 36 L. Ed. 247. 5 Chicago, etc., Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970.

6 Reagan v. Farmers Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014.

proposition that the formation of a tariff of charges for transportation by a common carrier of persons or property is a legislative or administrative rather than a judicial function. Yet it has always been recognized, that, if a carrier attempted to charge a shipper an unreasonable sum, the courts had jurisdiction to inquire into that matter and to award to the shipper any amount exacted of him in excess of a reasonable rate; and also, in a reversed case, to render a judgment in favor of the carrier for the amount found to be a reasonable charge. The province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of the carrier prescribes the rates. The courts are not authorized to raise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; but still there can be no doubt of their power and duty to inquire whether a body of rates prescribed by a legislature or a commission is unjust and unreasonable, and such as to work a practical destruction to rights of property and if found so to be, to restrain its operation."

113. General Schedule of Rates.-It would seem from this statement, that the power of a court to inquire into the reasonableness of a rate charged to shippers is quite different as to a carrier, where it charges a maximum rate prescribed by a legislature or a commission and where it charges a rate fixed by itself. In the latter case any one individual may at

tack a rate charged in his case, without respect to its being one in a body of rates or not, and any carrier might sue a particular shipper to make him pay a reasonable rate for a particular service. But, if a legislative rate has been prescribed, consideration of its justice or injustice is lost in the more general view of the justice or injustice of the body of rates which has been legislatively prescribed. The Reagan case, therefore, does seem to show, that a statute or commission fixing rates is presumptively a reasonable exercise of power, and even, if an individual may assail the fixed rate as unreasonable, his claim cannot be considered disjunctively or separably, but only as it has been lumped in with the body of rates legislatively declared. The making of "a general schedule of rates, involving the profitableness of the intrastate, operations of the carrier as a whole" was impliedly approved in a late case. But it had been held prior to this decision that, though a rate prescribed by a commission for the carriage of a particular commodity would be a confiscatory rate, if applied to all the commodities the carrier hauled, this did not show necessarily that it was a confiscatory rate, because the rates upon other articles might be sufficient to allow the carrier to earn a fair return upon its property notwithstanding the low rate upon one commodity. Eighth Circuit Court of Appeals said, in referring to this case, that: "It is the necessary effect of an established body of rate that determines

8

7 Minnesota Rate Cases, 230 U. S. 352, 433, 33 Sup. Ct. 729, 57 L. Ed. 1511.

8 Minneapolis & St. L. Ry. Co. v. Minnesota, 186 U. S. 257, 22 Sup. Ct. 900, 46 L. Ed. 1151.

whether or not it is confiscatory.'

999 The case in 186 U. S. was referred to approvingly in Minnesota rate cases, supra.

114. State Ruling on Legislative Power to Fix Rates. The statement made arguendo by Chancellor Wadsworth in Beekman v. Saratoga & S. R. Co., supra, has, by many decisions of state courts, been either tacitly recognized or directly declared. In Munn v. Illinois, supra, it was stated as one of the reasons why legislation had been fully recognized by state courts. By New York Court of Appeals in 1863 it was said: "Before toll can be exacted the amount must be determined either expressly by the grant of the franchise to take toll, or by the act or declaration of the party entitled, in the exercise of a discretion conferred, to take reasonable tolls, or by agreement between the parties."" When this case was before New York Supreme Court in 1859 it was pointed out that the only right of the canal company to charge tolls and rates not exceeding three cents per mile, for every ton of ascertained burden in every vessel," was as permitted by its charters, the charters having been granted by the legislature." In an early charter granted in Georgia for a toll bridge the right to take toll was measured by the right to charge maximum rates in another charter stated in shillings and pence for vehicles, empty and loaded, for man and horse, cattle, hogs, sheep and goats, for rolling hogsheads

Love v. Atchison, T. & S. F. R. Co., 185 Fed. 321, 328, 107 C. C. A. 403.

10 Pennsylvania Coal Co. v. Delaware, etc., Canal Co., 3 Abb. App. Dec. 477, 478.

11 Same v. Same, 29 Barb. 589.