Page:Harvard Law Review Volume 12.djvu/71

51 NOTES. 5 1 one, and the action of the State legislature in regard to it is conclusive. This position, however, is slightly inaccurate. In order that a State law may be a valid exercise of the police power, it must be reason- able ; and the decision whether it is reasonable or not is in some cases within the province of the federal courts. The question, it is true, is not one of law ; but it is a question arising under the Constitution of the United States when the statute causes a deprivation of prop- erty, and the courts cannot escape the responsibility of deciding it. In dealing with the matter, the court is in a position similar to that of an appellate court passing upon the facts found by the jury at a trial in the court below ; and presumably it can properly hold a State statute invalid only when under no possibility could the statute be con- sidered a reasonable police regulation. Steenerson v. Great Northern Ry. Co., 72 N. VV. Rep. 713 (iNlinn.). The Supreme Court of the United States has never explicitly stated this rule, but it seems to have followed it tacitly in all the cases hitherto decided. The principal case, at all events, falls within the rule. The Nebraska statute had no uherior object beyond the express object of securing fair rates, which must, of course, be fair to the railroads as well as to the public ; and since the statute if enforced would have been confiscatory, or practically so, no one could suppose, under the circumstances, that it was a reasonable regulation. The effects of the decision are as yet problematical. So far as the public and the States are concerned, it can work little hardship. Al- though legislatures may chafe under the limitation, the public can have no just cause for complaint if railroads are allowed to make reason- able profits. The chief hardship must fall upon the federal courts in being forced to decide questions which are by nature legislative. This evil, however, may not be so great as at first sight appears ; for if aourts adhere to the rule of holding no statute invalid which is not hopelessly unreasonable, they will offer little encouragement for bringing cases of this class before them. There may be difficulty if parties accept the suggestion of Mr. Justice Brewer in the Circuit Court, and bring suits continually upon statutes once declared unconstitutional, in the hope that conditions may have changed since the last decision ; but in practice it is hardly likely that States will leave unrepealed and unaltered upon the books statutes that have been declared invalid, upon the chance that under changed conditions they may again be brought to life. The great merit of the decision is in affirming to railroads their constitutional safe- guard against legislative attacks ; the question which is still left for the' court to face is how far it will pass upon the reasonableness of rates imposed by a State when the rates merely limit, without virtually destroy- ing, the profits of the corporation. Common- Law Copyright. — The literary property of a writer in his work is probably supposed by most people to be no sort of legal property at all, apart from the effect of copyright statutes. The right of an author, however, to the exclusive use of a particular form of words originated by him has been treated by the courts for a hundred and fifty years, and probably much longer, as a permanent right of property, quite distinct from the ownership of the manuscript as a physical object. In the cele-