The San Francisco call., 1896-05-09

in this State is limited by the provision
that private property shall not be taken
without compensation. 1t cannot trench
on the perfect right of private property as
fixed by the constitution.
''If | own piece of property that own.
ership goes to all the enjoyment that
springs from it. You cannot take from
me the earning capacity any more than
the property itself"
"Coufd any rates be reduced one-tenth
of a cent without it being contiscation 2"
asked Judge Hayne.
'That depends. The limitation is tnat
Won must not under pretense of 'regula-
tion' accomplish confiscation. There IS
ample scope for regulation under the de-
cisions of the Supreme Court. The court
has said that the police power OF the state
may be exercised in cases OF extortlon, In
wrongful use of property-its use as nuis-
sance. That is the limitation under the
latest decisions; but you must not impair
the rights of property.
The court-Suppose a rallroad Is con.
structed through q region where teams are
the only other means of compensation.
The rates will be regulated, we Will say, oy
the laws of supply and demand you speak
of, The supply is the supply OF raliroaos;
the demand is the demand OF the farmers
for railroads. Can that railroad cnarge
the highest rates that that supply and
farmers to the use of ox-teamsf
Judge Garber-It can. 1t has the rlght
to charge the highest rate that will be
paid. The power of regulation comes IN
preventing discrimination. Will your
Honor say that with my railroad may
not charge all that the farmers Will pay
me. without resorting TO ox-teams or To
competition?
regulation? Shall it be the railroad S
! power to earn without regulationP
Garber-I say so.
The court-What becomes of regulation
| Garber-The power of regulation is ap
piled to exceptional instances, when some
| particular wrong Is done.
The court-Suppose the railroad com
panv fixes its rate. which it applies equally
| to all. You say that the value OF the road
depends on its ability to get that rate
| Where. then, can regulation come in, the
railroad having made no Determinations
| Garber-The company is entitled TO the
highest rate the people will pay. Why
| shouldn't they resort to teams?
| There was more of this, the court saying
| that it was not prepared to go as far as the
| advocate was going. Judge CARRIER eluci
dated further his contention that the
| latest decisions confirmed the doctrine
that the State power OF regulatlonwas 6
police one and that the property right was
| the higher and more sacred one-
"This doctrine of the limitations to the
| States power has not sprung full-hedged
| from the minds of the courts" CARRIER
said. THE courts are feeling their way tc
il. The power of regulation was frs
stated in the Mum case, and then thi.
power of regulation swallowed up tht
rights of property. The question is
| Where is the dividing line between these
| conflicting powers? The higher right i!
the right OF property, and this has beer
recognized in later decisions"
The court-The question is, Where doe
the power OF regulation end and the righ
OF property begin7 If the State has tht
power of regulation it must have the righ
to exercise it. Does not this power extend
past extortion?
Judge Garber-It does not. The valu,
of property is its earning capacity. Sine,
the Mum case the courts are finding thei
way TO the true principle that when tn
power of regulation comes in conflict will
constitutional guarantees it must fal
back. This has been the pole star of tn
courts IN their progress through thes
cases. What matters if you say this limit
the power of regulation? The full valu
OF property must be preserved unde
normal and usual conditions, withou
wrong.
These expressions are typical of the chic
arguments yesterday afternoon.