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THE GREEN BAG

to interfere with it. They have taken the position that every man is dependent in the main upon the community as a whole. They realize that unless the police protect the property of, and unless the courts enforce the contracts df, a business man or of a business corporation, no business man or business corporation can carry on any busi ness at all. They realize that back of the courts and back of their mandates are the strong right arms and the bayonets, if necessary, of organized society, and that when a man depends on organized society for his protection and his business success, he must yield to that organized society the right to some measure of regulation and con trol.1 They have also within the last few years taken more and more positive steps in emphasizing and enforcing the old doctrine of what may be termed " the business affected with a public interest" — the old doctrine that if the business is one in which the public is really interested, is one which is absolutely necessary to the commercial or moral exist ence of a community, that the public has the right to regulate the same. They have held in recent years that the railroad, the bank, the warehouse, the gas company, the eleva tor and the monopoly of every kind belong to this class. If men create a monopoly, they must run the risk of governmental regulation. The courts are extending the number of businesses included in this list every day. In fact they hold that where any community grows up, is settled and adapts its business organization on the basis of continuance of privileges and rights in railroads, and elevators and other institu tions, where the business of the community is made dependent and organized on the basis of these facilities, the public has the right to supervise, control and regulate the same, and in a large measure to insist upon their continuance. So, too, on the question of the trade and labor combina tions the courts have recently come closer 1 Harbison v. Knoxville Iron Co., 183 U.S. 13; Peel Splinter Coal Co. v. State, 36 W. Va. 802.

and closer together and are gradually announcing a settled policy. They are in fact trying to sustain the legislatures in this age of combination in what might be termed their last stand against socialism, their last fight for individualism. The public and the courts have come to understand that in many instances we must either regulate and control or else we must own. If we cannot control the elevators and the railroads and the agencies of production which are now being monopolized, we must own them. They fully realize that the individualist Anglo-Saxon and Northman shrinks from this ownership, and in thus interfering with individual liberty and the unrestricted use of property the courts can hardly be said to be socialistic. Rather, as we have before suggested, they may be said to be making a last stand against socialism. They appear rather to be actuated by the belief that legislative interference is necessary in order that individualism may survive, in order that the health and morals of our citizens may be safeguarded, and in order that a capitalistic, monopolistic social ism may be warded off. Mr. Debs has said and done many foolish things, but he was wise, and even expressed the judicial thought of to-day, when he said, " Better government ownership of railroads than railroad owner ship of government." From the opinions in these cases Mr. Justice Brewer and Mr. Justice Peckham have almost always dissented and have adhered to the old capitalistic individualism of which we have spoken. • In fact, in not a few of the cases the court has been divided in the ratio of five to four. That this should have been the case is of course not. to be wondered at. The average constitutional question, es pecially if it arises under the fourteenth amendment to the Federal Constitution, is hardly ever a question of law at all. It is a question of sociology, of political science, of political economy. When the court is called upon to decide how far gov ernmental regulation of persons and of property can go, to what extent the com