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within which a railroad company did business, to regulate or limit the amount of any of these traffic charges."
The court further says: “There was in those cases (referring to cases in the 94th and 118th U. S. Reports) no decision as to the extent of control, but only as to the right of control."
“This question came again before this Court in Railroad Commission Cases, 116 U. S. 307-331, and while the right to control was re-affirmed, a limitation on that right was plainly intimated in the following words of the Chief Justice: “From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights, the State cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use, without just compensation or without due process of law.'
“This language was quoted in the case of Dow v. Beidelmen, 125 U. S. 680, and again in Chicago & St. Paul Railway v. Minnesota, 134 U. S. 418, and in this case, it was said by Mr. Justice Blatchford, speaking for a majority of the Court:
“'The question of the reasonableness of a rate of charge for transportation by a railroad company involving, as it does, the element of reasonableness, both as regards the company, and as regards the public, is eminently a question for judicial investigation, requiring the process of law for its determination.?”
And in the case of Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339, the court says:
“The legislature has power to fix rates and the extent of judicial interference is protection against unreasonable rates.” So that, at present, the doctrine as established by the Supreme Court of the United States is that the legislature can, by its railroad commission, or otherwise, regulate the rates to be charged by railroads, but the regulations must be reasonable and not confiscatory, and that whenever the rate becomes unreasonable, which is a question of fact in each case, the United States Courts can interpose, on the constitutional question that it violates the Fourteenth Amendment, as to taking private property without due process of law.
It is well to call attention to the decision made by the Supreme Court of the United States which declares that a corporation is a person within the meaning of this provision. This was decided in the case of Santa Clara County v. Southern Pacific Railway Co., 118 U. S. 394.
In the Fourth Volume of Thompson on Corporations, Section 5460, the text-writer, supporting the same by authority, says:
“This police power is perhaps the vaguest and least defined governmental power which exists. It is said by the Supreme Court of the United States to be the power of the States to protect the lives, limbs, health and morals of its citizens. In short, it is the power of self-preservation. Roughly speaking, it may be said that Congress possesses none of it and the States possess all of it. This police power of the States wherever it touches the boundaries of Federal power or wherever it is so exerted as to raise what are termed “Federal questions,” is bounded only by those concep
tions of what is reasonable and just which prevail at the particu·lar hour in the minds of the members of the highest Federal
judicial tribunal. But whatever may be its nature or extent, the authority of Congress over the regulation of Interstate Commerce is paramount to it, and when the two conflict the police power of the State must give way.”
And again, in Section 5470, Volume 4, Mr. Thompson says:
“There is a power abiding within the State to legislate so as to affect the corporate powers conferred by charter or statute, although such power may not be specially reserved either in the charter, the constitution or the general law. This is the power 10 pass laws for the promotion of general peace, health and good order of the community, which laws are generally denominated police regulations. This is one of the inalienable powers of every sovereignty.”
I have outlined the legal definitions of police regulations that were considered by the Court when the decision in the case of Munn v. Illinois was made. It will be noted that the case of Munn was not a corporation, but a private individual engaged in the grain elevator business in Chicago. It was an easy step from the case of Munn to the Railroad Cases reported in the same volume of the Supreme Court Reports.
The legislatures of the various States feeling their freedom to follow the principle laid down in Munn v. Illinois, lost no time in developing the idea, and the unchecked power of the legislatures following on the Granger cases, as they were termed at the time, brought affairs to a condition which finally terminated in the check that this doctrine of control received in the Railroad Commission Cases, decided in the 116th U. S. and constantly modified from that time on until the case of Reagan in the 154th U. S., in which the Court finally held that the right to control and regulate was not the right to confiscate.
The statement by Mr. Thompson that a Federal question is bounded only by those conceptions of what is reasonable and just, which prevail at the particular hour in the minds of the members of the highest Federal judicial tribunal, is perhaps a caustic and unwarranted criticism on the Supreme Court of the United States.
Necessarily these questions which arise under the Fourteenth Amendment are questions of fact to be answered in each particular case. What might be a reasonable rate in one case for a railroad to charge would be an unreasonable rate in another. So that the number of these cases is increased and no particular principle can be laid down by the Supreme Court that will apply to all of them. Hence, we find that the decisions of the Supreme Court are made up largely of constitutional questions arising under the Fourteenth Amendment, which the court has resolved to treat as a mere matter of law and not sentiment. They are no longer inclined to treat it as a question involving the negro, further than it might be held to apply to a negro in the particular case before them. The effort on the part of counsel to introduce into arguments before the Supreme Court the opinions of Senators and Legislators who were in the United States Congress, which proposed the Fourteenth Amendment, at the time the same was under consideration by them, has been rejected by the Supreme Court as throwing no light on the subject.
In the case of Maxwell v. Dow, recently decided, in 1899, and which is found in 176 U. S. 581, the court says at the bottom of page 592:
“That the primary reason for that amendment was to secure the full enjoyment of liberty to the colored race is not denied, and yet it is not restricted to that purpose, and it applies to every one, white or black, that comes within its provisions.”
And again, on page 601, the court says:
“Counsel for plaintiff in error has cited from the speech of one of the Senators of the United States, made in the Senate when the proposed Fourteenth Amendment was under consideration by that body, wherein he stated that among the privileges and immunities which the committee having the Amendment in charge sought to protect against invasion or abridgement by the States, were included in those set forth in the first eight Amendments to the Constitution, and counsel has argued that this Court should, therefore. give that construction to the Amendment which was contended for by the Senator in his speech.
“What speeches were made by other Senators, and by Representatives in the House upon this subject is not stated by counsel, nor does he state what construction was given to it, if any, by other members of Congress. It is clear that what is said in Congress upon such an occasion may or may not express the views of the majority of those who favor the adoption of the measure which may be before that body, and the question whether the proposed Amendment itself expresses the meaning which those who spoke in its favor may have assumed that it did, is one to be determined by the language actually therein used and not by the speeches made regarding it.
“What individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional Amendment, or bill or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the members voted in adopting it.”
And again in the case of Downs v. Bidwell, 182 U. S. 254, the court says:
“It is unnecessary to enter into the details of this debate. The arguments of individual legislators are no proper subject for judicial comment. They are so often influenced by personal or political considerations or by the assumed necessities of the situation that they can hardly be considered even as the deliberate views of the persons who make them; much less as dictating the construction to be put upon the Constitution by the courts.”
I cannot pass from this subject without quoting from the case of Smith v. Ames, decided in 1898, 169 U. S. 466, in which the court, in announcing certain principles as being settled, declare as follows:
“(1) A railroad corporation is a person within the meaning of the Fourteenth Amendment declaring that no State shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
“(2) A State enactment, or regulations made under the authority of a State enactment, establishing rates for the transportation of persons or property by railroad that will not admit of the carrier earning such compensation as under all the circumstances is just to it and to the public, would deprive such carrier of its property without due process of law, and deny to it the equal protection of the laws, and would, therefore, be repugnant to the Fourteenth Amendment to the Constitution of the United States.
“(3) While rates for the transportation of persons and property within the limits of a State are primarily for its determination, the question whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the Constitution secures, and, therefore, without due process of law, cannot be so conclusively determined by the Legislature of the State or by the regulations adopted under its authority, that the matter may not become the subject of judicial inquiry.”