Page:Earle, Does Price Fixing Destroy Liberty, 1920, 016.jpg

16 for, as has long since said:  "The law is not known to him who knoweth not the reason thereof."

Monopolies, therefore, having come to be considered the most "odious," the most "pernicious," the most injurious of trade evils, almost the equivalent of treason,—because they enabled individuals, in effect, to tax the community, not through its representatives, but through their own arbitrary decrees, and thus strike at the very root of our Liberty,—were and have always been considered necessarily, a subject of State control. If this be not conceded, the public utility cases are sure to be misunderstood.

It was found that in a certain class of cases, such as water, gas, electric, and transportation companies, the public convenience was best served by the organization of enterprises monopolistic in their nature; and so great has been the evil of monopoly that the State has never given up its continuing control of such enterprises; even preferring all the uncertainty, danger, and difficulty of arbitrary and noncompetitive price fixing to the greater evil of permitting a substantial power of taxation to rest in the hands of individuals not representative of the people who pay the taxes. So that all such grants have been received subject to the State's reserved power in this respect.

Accordingly, in such cases, price fixing has always remained a legislative function. At this point, however, the Constitution steps in and provides that the State, even in exercising this power, cannot overrule the constitutional provision providing against confiscation. Nevertheless, and this is one of the utmost importance, this being a legislative function, it has been determined that the rate fixed by the Legislature in such