The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1898-03-08
On That Phase of the Maximum
Rate Question
Justice Harlan Bases His Opin-
ion in Nebraska Case.
WHEN THE TIME COMES
That They Yield Reasonable
Compensation
The Court May Withdraw Its
Injunction.

Washington, March SIN the Ne
braska maximum freight rates case,
Judge Harlan of the supreme court has
given an opinion, holding the Nebraska
law to be contrary to the fourteenth
amendment of the constitution, in that
it authorized the taking of property
without due process of law, and was
therefore invalid. The decision is a
clean victory for the railways.
Justice Harlan in deciding upon the
constitutional questions involved, said:
by the fourteenth amendment it is
provided that no state shall deprive any
person of property without due process
of law, nor deny to any person within
its Jurisdiction the equal protection of
the laws. That corporations are per-
sons within the meaning of this amend
ment is now settled.
This court speaking by Chief Justice
Waite, has said that while a state has
power to fix the charges by railroad
companies for the transportation of
persons and property within its own
jurisdiction until restrained by valid
cOntract,or unless what is done amounts
to regulation of foreign or interstate
commerce, such power is not without
limit; and that under 'pretense of reg
ulating fares and freights, the state
cannot require a railway corporation to
carry persons or property without re-
ward, neither can it do that which in
law amounts to the taking of private
property for public use without just
compensation, or without due process of
law"
Justice Harlan said that the following
principles must be regarded as settled:
1. A railroad corporation is a person
within the meaning of the 18th amend
ment, declaring that no state shall de-
priVe any person of property without
due process of law, nor deny to any per-
son within it's jurisdiction the equal
protection of the laws.
A state enactment,Or regulation made
under the authority of a state enact
ment, establishing such rates for the
transportation of persons or property
by railroad, as will not admit of the
carrier earning such compensation as
under all the circumstances, is just to
it and to the public, would deprive such
carrier Of its property without due pro-
cess of law and deny to it the equal pro-
lection of the laws and would therefore
be repugnant to the fourteenth amend
States.
3. While rates for the transportation
of persons and property within the linn
its of a state are primarily for its de-
termination the question whether they
are so unreasonably low as to deprive
the carrier of its property without such
compensation as the constitution Sc
cures and therefore without due process
of law, can not be so cOncluSiVely de-
termined by the legislature of the state,
or by regulations adopted under it's
authority that the matter may not be-
come the subject of judicial inquiry.
This last proposition Justice Harlan
said covered the case in point. He then
proceeded to make an exhaustive eX-
animation into the effect of the enforce
ment of the rates prescribed upon the
business of the different Nebraska lines,
showing the reduction to amount to
$3.50 per cent for the years 1891, 1892,
and 1898. The result was to show that
each of the roads involved would for
this period have conducted their bust
lose rxrifI Nv
ceptiOns, and those for only a short
while.
Discussing the question as to what
are the considerations to which weight
must be given when we seek to aScer-
tain the compensation which a railway
company is entitled to receive, and
prohibition upon the receiving of which
may be fairly deemed deprivation OF
legislative decree of property without
due process of law, Justice Harlan said:
despite the difficulties that confessed
ly attend the proper solution of such
questions, the court can not shrink from
the duty to determine whether it be
true, as alleged that the Nebraska
statute invalidates or destroys rights
secured by the supreme law of the land.
No one we take it, will contend that Il
state enactment is in harmony with
that law simply because the legislature
of the state has declared such to be the
isIature the final judge of the validity
of it's enactment, although the cOnsti-
tuition OIL the Vi 1I0d states anu the
laws made in pursuance therefore, are
the supreme law of the land, any
thing in the constitution or laws of any
state to the contrary Notwithstanding.
The idea that any legislature, state
or federal, can cOnclusively determine
for the people and for the courts that
what it enacts in the form of a law, or
what it authorizes its agents to do is
consistent with the fundamental law
is in opposition to the theory of our in
stitutions. The duty rests upon all
courts, federal and state, when their
jurisdiction is properly invoked, to see
to it that no right secured by the su-
preme law of the land, is impaired or
destroyed by legislation"
1t has been contended on behalf of the
law that the state of Nebraska could
legally require local freight business to
be conducted even at an actual loss If
the company earned on its interstate
business enough to give it just compen-
sation in respect of its entire line and
all it's business interstate and domestic
The court did not accept this view,
Justice Harlan saying: We can not
concur in this view. In our judgment,
it must be held that the reasOnableness
or unreasonableness of rates prescribed
by a state for the transportation of per-
sons and property wholly within its
limits must be determined without ref
erence to the business of an interstate
character done by the carrier, or to the
profits derived from that business TIE
state can not justify unreasOnably low
rates for domestic transportation, con-
sidered alone upon the ground that the
carrier is earning large profits on its
interstate business, over which so far
as rates are concerned, the state has no
control Nor can the carrier justify
unreasonably high rates on domestic
business upon the ground that only in
that way can it meet losses on its inter
state business. So far as rates of
transportation are concerned, domestic
business should not be made to bear
the losses on interstate business nor the !
latter the losses on domestic business
In conclusion Justice Harlan said that
if business improved the state could ap-