Page:The Green Bag (1889–1914), Volume 17.pdf/662

 GOVERNMENTAL REGULATION OF PRICES of liberty and property guaranteed under the American constitutional system and would be contrary to the genius of American institutions. There is, however, a large body of law which, while not directly fixing prices, has for its purpose the prevention of monopoly and the prohibition of combina tions to restrain trade. It is also a wellrecognized principle that in a business properly designated public, state regulation of prices is not only legitimate but desirable, and laws fixing the charges for carriage, ferriage, wharfage, etc., are common. There is also recognized by the case of Munn v. Illinois and the decisions arising out of the Granger legislation, the principle that any business, whether or not concerned in the work of the state and enjoying govern mental prerogatives or franchises, may become "affected with a public interest" so as to justify state regulation of its charges. When a business will be so "affected" is not clear. It was suggested in Budd v. New York, 143 U.S. 517, that whenever the business possessed a "virtual monopoly," whether legal or de facto, the state might regulate its charges, on the ground that monopolistic conditions often bring oppres sion, to the relief of which the state's police power properly extends, even to the fixing of rates. But in Brass v. North Dakota, 153 U.S. 391, state regulation of charges for grain elevating and storing was upheld, although there was no monopoly of any kind. For aught that appears, it was simply convenient and desirable that such prices should be regulated. In Inter-Ocean Pub. Co. v. Associated Press, 184 Ill., 436, there is an intimation that whenever any private business becomes essential to the comfort and convenience of the public, it is "affected" and may be regulated. An examination of most of the preambles of most of the statutes regulating prices shows that they were en acted for the purpose of relieving from economic distresses and to secure to the people those commodities which were deemed by the legislative branch of the government

631

to be of prime necessity for the existence or for the comfort and convenience of the body politic. The principle seems to be that whatever is essential or desirable for the public good the state may secure, and if to secure it the price must be fixed by law, the state may fix it. As indicating this, a recent statute of New Hampshire (Laws of 1899, c. 85) may be mentioned. Its striking similarity in language, and purport to some English statutes three hundred years old, is apparent. "Any person or persons who feel aggrieved by any rates charged by any fire insurance company doing business in this state may complain to the insurance commissioner, who shall hear the parties; and if it appear to him. that the rates charged are excessive, he shall fix a reasonable rate, and the rate so fixed shall be binding upon all such companies. ... If any such in surance company refuses to insure prop erty at the rates fixed by the, insurance commissioner it shall be fined $200 for each offense. " This is not different in principle from 25 Hen. VIII, c. 15, above, which authorized certain officers on complaint to fix the price of books and binding, or 16 & 17 Car. II, c. 2, authorizing officers to fix a reasonable price for coal. Whether there is under the American constitutional system a general legislative power to fix prices in private business is an open question. The views of many on questions of economics and expediency, and on the proper functions of the state, would undoubtedly oppose the exercise of such a power. But it may well be that a time will come when dominant public sentiment will incline less to the laissez-faire and more to the socialistic idea of the state. The decision of the Supreme Court of the United States in People v. Lockner, holding the New York ten-hour-a-day law for bakers unconstitutional, because its "real object and purpose were simply to regulate the hours of labor between the master and employees (all being sui juris) in a private business not dangerous in any degree to