prescribing a schedule of rates does not prevent inquiry by the courts, and the question is open and must be decided in each case, whether the rates prescribed are within the limits of the legislative power, or mere proceedings which, in the end, if not restrained, will work a confiscation of the property of complainant. Of course some rule must exist, fixed and definite, to control the action of the courts, for it cannot be that a chancellor is at liberty to substitute his discretion as to the reasonableness of rates for that of the legislature. . . The right of judicial interference exists only when the schedule of rates established will fail to secure to the owners of the property some compensation or income from their investment. As to the amount of such compensation, if some compensation or reward is in fact secured, the legislature is the sole judge. The question is one alone of policy. . . The rule, therefore, to be laid down, is this: That where the proposed rates will give some compensation, however small, to the owners of railroad property, the courts have no power to interfere. Appeal must then be made to the legislature and the people."

"14

Here is a clear enunciation of the doctrine of judicial review from a lower court, and, what is more important, its practical application through the granting of an injunction against a railroad commission. In another case, also,15 which he decided the same day, Judge Brewer issued an injunction restraining the Minnesota Commission from enforcing a certain switching charge, which the railroad claimed would prove unremunerative. These two cases could leave no doubt that in Judge Brewer's mind unremunerative rates were unreasonable, and unreasonable rates it was competent for the judiciary to suspend.

Some months later 16 the Supreme Court of Florida

15

Chicago, St. Paul, Minneapolis and Omaha R. Co. v. Becker, 35 Fed. Rep. 883.

16 Pensacola, etc. R. Co. v. Florida, 25 Fla. 310.

had under consideration rates made by the state commission, which the railroad claimed and the commission admitted would not allow the road to pay its operating expenses. Reviewing the Railroad Commission, Dow, Georgia and Dey cases, with thorough approval of Judge Brewer's opinion in the last named case, the court declared that the enforcement of unremunerative rates is a wrong, for which there is no remedy but in the courts. Accordingly it adjudged the contested rates to be an attempt to take property without just compensation and without due process of law.

From this brief review of the suits which followed the Railroad Commission Cases, it is evident that in a very few years the Supreme Court had placed a broad interpretation upon Chief Justice Waite's dictum, while some of the lower courts had gone so far as to announce a definite theory of judicial control. The question had not been authoritatively determined by the Supreme Court because it had not been squarely presented, but such had been the tendency of judicial opinion since 1885, that one could have foretold the nature of Court's decision when a clear case arose. It was but a matter of time before the period of uncertainty would be ended by a definite recantation by the Court of the conviction so clearly expressed in the Granger Cases.

It was in 1890 that the test came. The case, the Chicago, Milwaukee and St. Paul R. Co. v. Minnesota,17 originated in 1887, in a complaint made to the Minnesota Commission alleging the unreasonable character of certain milk rates charged by the railroad. The complaint was forwarded to the railroad and a date fixed for an examination. Upon that date both the railroad and the complainants appeared by attorney, and the Commission

"134 U. S. 418.

"proceeded to investigate the complaint." Some weeks later the Commission served its decision upon the railroad with an order fixing new and lower rates. Upon the refusal of the railroad to put them in force, the Commission applied to the Supreme Court of the State 18 for a writ of mandamus to compel the adoption of the rates. On the hearing the railroad asked for a reference to take testimony regarding the reasonableness of the Commission's rates, but this application was denied upon the ground that the statute declared the Commission's rates to be conclusively reasonable, and, as decided in the Granger Cases, this legislative determination was binding upon the courts. The court, therefore, granted a peremptory writ of mandamus. The railroad company, however, sued out a writ of error to the Supreme Court of the United States, asserting its right to contest the reasonableness of the Commission's rates, under the Fourteenth Amendment to the Federal Constitution. The case was decided March 24, 1890, the opinion of the majority of the Court being read by Mr. Justice Blatchford.

In his opinion the learned jurist reviewed the facts of the case, and the decision of the Supreme Court of Minnesota, then discussed the question as to whether the railroad's charter exempted it from legislative control, and having decided that question in the negative, announced the important point to be whether the form of regulation adopted in this case was valid.

Launching into the discussion of this subject, he asserted the necessity of adopting the construction placed upon the Minnesota statute by the state court-that the Legislature intended the Commission's rates to be conclusively reasonable. Upon such a construction he declared the statute to be clearly invalid:

66 It conflicts with the Constitution of the United States in the particulars complained of by the railroad company. It deprives the company of its right to a judicial investigation, by due process of law, under the forms and with the machinery provided by the wisdom of successive ages for the investigation judicially of the truth of a matter in controversy, and substitutes therefor, as an absolute finality, the action of a railroad commission which, in view of the powers conceded to it by the state court, cannot be regarded as clothed with judicial functions, or possessing the machinery of a court of justice."

Under the statute, said the Court, the Commission had but to "find" a railroad's rates unreasonable, adopt others, and notify the company of the fact.

"No hearing is provided for; no summons or notice to the company before the commission has found what it is to find, and declared what it is to declare: no opportunity is provided for the company to introduce witnesses before the commission,-in fact, nothing which has the semblance of due process of law; and, although in the present case, it appears that, prior to the decision of the Commission, the company appeared before it by its agent, and the commission investigated the rates charged by the company for transporting milk, yet it does not appear what the character of the investigation was, or how the result was arrived at." 19

Continuing, Mr. Justice Blatchford called attention to another provision of the statute, requiring all railroad rates to be equal and reasonable. Nevertheless, although here the railroad alleged that the Commission's rates were not equal and reasonable, the statute did not permit them to show that fact in judicial proceedings. This restraint was clearly wrong: "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 investiga

19 134 U. S. 456, 457.

tion, requiring due process of law for its determination. If the company is deprived of the power of charging rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law, and in violation of the Constitution of the United States, and in so far as it is thus deprived, while other persons are permitted to receive reasonable profits upon their invested capital, the company is deprived of the equal protection of the laws."20

From this argument the conclusion emerged that the issuing of a peremptory writ of mandamus by the state court was unlawful, because in violation of the Constitution of the United States. In its judgment, therefore, the Court remanded the case for further proceedings not inconsistent with its opinion, remarking, however, that unless the state court changed its construction of the statute so as to permit of judicial review of the rates, the only possible proceeding was to dismiss the application for the mandamus.21

The opinion of Mr. Justice Blatchford in this case has been described at length and many passages have been

20 134 U. S. 458. With this compare the following from the dissenting opinion of Mr. Justice Bradley: "No one questions the constitutionality or propriety of boards for assessing property for taxation, or for improvement of streets, sewers, and the like, or of commissions to establish county seats, and for doing many other things appertaining to the administrative management of public affairs. Due process of law does not always require a court. It merely requires such tribunals and proceedings as are proper to the subject in hand." 134 U. S. 464.

21

"On the same day the Supreme Court, through Mr. Justice Blatchford, handed down its opinion in the case of the Minneapolis Eastern R. Co. v. Minnesota, 134 U. S. 467. The Minnesota Commission had fixed a switching charge which the railroad refused to adopt. The Commission secured an alternative writ of mandamus, and in its reply the railroad asserted that the rate was unreasonable and would