Page:The Green Bag (1889–1914), Volume 19.pdf/175

 152

THE GREEN BAG

by the courts. This neither should be, nor is, true. Under the wise conservatism of our form of government, the court is and must be the ultimate arbiter of the validity of all legislative and executive action, where they affect property and personal rights. There must be a rock on which men may stand, and to which they may pin their hopes, which is not affected by the storms of passion or the mutations of politics. But it is not necessary to the protection of property rights that this conservative judicial power should be carried to the extent of frustrating reasonable legislation in the interests of proper regulation of transportation. The courts should be alive to the spirit of this movement, and give the law a broad and liberal construction to effectuate the objects of Congress in passing it. Suppose it does require us to tread unknown paths; it is not the first time we have blazed the way. Whenever great questions have confronted the courts, they have shown themselves equal to the emer gency, and should do so again. They should keep abreast with the most advanced thought of the time. Do not misunderstand me. I do not think courts should bend to every breeze and yield to public clamor, but we should not be unmindful of a legitimate and healthy public sentiment which has found its ultimate expression in legislative action. If we are, we show ourselves blind to the signs of the times and will block the wheels of progress. Representative govern ment is but the expression, through con stituted authority, of the public will, and while no greater service can be rendered to a people by the courts than resisting encroachment upon their fundamental con stitutional rights, yet we should be equally bold to support new ideas, advance new methods, and establish new precedents, when necessary to the public good. It is possible that in times of public agitation and excitement, the Commission may go beyond that reasonable regulation which Congress contemplated when granting the

power to fix rates, and may take from railroad companies, and therefore from the stockholders a reasonable income upon the investment. To obviate this, it is, of course, the duty of the legislative depart ment of the government to make the Com mission as free from interference by the legislative and executive branches of the government as possible, so that they cannot be made mere instruments of political will in the exigencies of campaigns. But this is not a question for the courts. It is the duty of the courts to carry out and enforce the orders and regulations of the Commission, unless they invade property rights. Rail road property and all property invested in such public utilities can only be worth what it will earn to its shareholders. It is as much taking private property to deny the stockholder any part of a reasonable earning, as it is to deny him any earnings whatever. It is, therefore, a judicial ques tion when the Commission has fixed a rate or schedule of rates for railroads to charge, whether those rates give to the stockholders a reasonable return upon their capital. This question becomes much more difficult, to be sure, when Commissions only fix a part of the rates charged by railway com panies, or when state Commissions fix the rates for intra-state business, and the Inter state Commerce Commission fixes the rate for interstate business. But it only adds to the difficulty, and requires the more care, judgment and experience by the courts and lawyers. Undoubtedly the conflict between state and federal authority will become one of surpassing importance, but we believe that wherever the federal authority attaches, the power is exclusive, that it does not stop at state lines, and that it may go to any extent to effectuate the objects of Congress in establishing the regulation. We mean to any extent within the bounds of the Federal Constitution, because the Congress can no more take and destroy private property than can the state. The com merce of the country has become of such