freely quoted for several reasons. In the first place, because of the great importance of the case. It marks the turning point in American railroad law; it indicates the definite adoption by the Supreme Court of a policy fraught with tremendous consequences both to the railroads and to the people. In the second place, because the reasoning of the Court does not repose on its former decisions or opinions. In all that part of his opinion which deals with the question under discussion, Mr. Justice Blatchford cites no case or other authority except the obiter dictum in the Railroad Commission Cases. His doctrine was new law, freshly made out of whole cloth.

But still another reason for the extended discussion of his opinion is that it is not entirely easy to understand its reasoning. It must be confessed that the discussion. is somewhat confused, and it is therefore difficult to satisfactorily digest its substance. The following, however, is believed to be a practically faithful statement of the doctrine of judicial review as it presented itself in this

case:

Although railroad companies are quasi-public in character they are entitled to the protection of the Fourteenth Amendment. Therefore,

1. They cannot be deprived of property without due process of law. But since rates imposed by the state may deprive them of the lawful use of their property, and hence, in substance and effect, of the property itself, such rates must be enforced only after an investigation by judicial machinery, that is, after due process of law has been observed.22

deprive it of property without due process of law. Its request to make proof of these matters was, however, refused and a peremptory writ of mandamus issued. Upon its reasoning in the other case, and especially because no notice to the railroad or hearing had been granted before the charge had been fixed, the Federal Supreme Court reversed the judgment of the State Court.

"The statute in this case, however, did not provide nor require due process of law, nor did it appear that the commission employed it in fixing the rate.

2. They cannot be denied the equal protection of the laws. But if they are deprived of the lawful use of their property with due process of law, while other persons are not, they are denied the equal protection of the laws.23

This, then, is the doctrine of judicial review as it appeared when first authoritatively announced in 1890. It will at once be seen, however, that in this form, it was in but a crude and rudimentary state, and much litigation was needed to develop and refine it. As pronounced by Mr. Justice Blatchford, many questions of importance were left unsettled, and it is to the later decisions of the court that we must look for answers to these questions. The next two chapters will therefore be devoted to a study of the evolution of the doctrine up to the present time.

It remains now merely to remark that although the doctrine of this case was far from complete, the result of the case was clear and definite. The Court had executed a right-about-face. Mr. Chief Justice Waite's repeated assertion in the Granger Cases, that the judgment of the legislature binds the courts as well as the people was distinctly renounced. So far as those cases dealt with the relation of the courts to the legislature they were definitely overruled. The doctrine of judicial review was born.

Only three of the justices who decided the Granger Cases were on the bench when this Minnesota case was considered. Of these, Mr. Justice Field had dissented in the former cases and naturally agreed with the majority in their holding. But Mr. Justice Bradley delivered a vigorous dissent, asserting that the majority had practically overruled Munn v. Illinois; claiming that reasonableness is a legislative and not a judicial question; and deploring an assumption of authority on the part of

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"Such might have been the effect of the statute in this case.

the judiciary, which, it seems to me, with all due deference to the judgment of my brethren, it has no right to make."24 In this dissenting opinion Mr. Justice Gray

and Mr. Justice Lamar concurred.

The third surviving member of the Granger Court was Mr. Justice Miller, who concurred "with some hesitation" in the judgment of the Court. His brief opinion consisted of a series of propositions, which, in his judgment, embodied the rules of law applicable to such cases. It may be said that his views were largely adopted in subsequent decisions of the Court.

* 134 U. S. 462.

CHAPTER III.

The Doctrine of Judicial Review.—II.

We are now to consider the evolution of the doctrine of judicial review, from its crude condition in the Minnesota Case to the well-developed and somewhat complex form which it presents to-day. In pursuing this study, constant reference must be made to the important cases decided since 1890, and it therefore seems advisable to delay our analysis of the subject long enough to take a hasty view of those cases.

The first case upon our subject to come before the federal Supreme Court, after the Minnesota case, was the Chicago and Grand Trunk R. Co. v. Wellman,1 which involved a Michigan statute fixing maximum charges. Finding that the evidence was insufficient to prove the rates unreasonable, the Court sustained the statute. On the same day on which this was decided, Mr. Justice Blatchford read the opinion of the majority of the Court in the curious case of Budd v. New York.2 This was an action brought to test the constitutionality of a New York statute fixing rates of charge for warehouses, and as this was precisely the question involved in Munn v. Illinois, the case is of special interest. The opinion was definite in its conclusion-the statute was sustained-but for uncertainty of argument it would be hard to find its equal in all the books of law. At one point it states that we must regard the principle maintained in Munn v.

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1 1892. 143 U. S. 339. To be referred to hereafter as the Well

man case.

U. S. 517. To be referred to hereafter as the Budd case.

143 365]

39

Illinois as firmly established, and we think it covers the present case." case." At another point it attempts to distinguish the Minnesota case, by asserting that the opinion. there had reference only to charges fixed by a commission and was not concerned with rates fixed by a legislature. Then, as if fearing that this might imply a total lack of judicial control over legislative rates, it resorts to the hopeless uncertainty of Dow v. Beidelmann, and quotes the dubious clause, "if it (the Court) would under any circumstances have the power" of determining a legislative rate to be unreasonable. Under cover of this makeshift doctrine, the opinion goes on to show that the complaint in this case alleged no unreasonableness in the rates, and then repeats the words: "even if under any circumstances we could determine that the maximum rate fixed by the legislature was unreasonable."

It is, of course, hard to construe such an opinion as this, but a fair inference would seem to be that at this time there was some doubt in the mind of Mr. Justice Blatchford, if not in the minds of other members of the Court, as to whether the doctrine of judicial review should be extended to rates made directly by a legislature. That there was no such doubt, however, as to most of the justices, is evident from the fact that Mr. Justice Brewer's opinion in the Wellman case, read on the same day, and to which no dissent was offered, clearly asserted the right of the courts to review legislative rates. "The legislature," he said, "has power to fix rates and the limit of judicial interference is protection against unreasonable rates."3

Two years later the same jurist laid to rest as gracefully as was possible, any doubt that may have been raised by the Budd Case by saying that because the records in that case had not shown the rates to be un'143 U. S. 344.