Daily capital journal. (Salem, Oregon) 1903-1919, 1907-01-12

1 case OF Mum vs.. Illinois, Chief Jus
tice Waite. in passing upon that case.
used this language: 1t is insistent.
however, that the owner of property
is entitled 70 a reasonable compen-
sation for its use even though Il be
clothed with public interest and
what is reasonable is a judicial and
not a legislative question. AS has
already been so shown, the practice
has been otherwise ~%S We know
that this is a power which may be
abused, but that is no argument
against its existence. For protection
against abuses by legislators the peo-
pie must resort to the polls and not
to the courts. OF the propriety of
Legislative interference within the
scope of the legislative power, the
Legislature is the exclusive Judge
This is the language of Justice
Waite in 1876 and was the law of
the land for a decade thereafter and
guided the courts in subsequent de-
cisions until 1886. In that year the
same chief justice. in passing upon
the case of Stone VS.. Farmers l.. &
t. Co., reported in 116 u. S., he re-
affirmed this doctrine, but in the de-
cision, we find the following dictum
from which later the doctrine of ju-
dicial review emanated: From what
has just been said II Is not to be in
ferred that this form of limitation
or regulation is itself without limit.
This power to regulate is not a pow
er to destroy, and limitation IS not
the equivalent of confiscation. I'm
der Dretense to regulate fares and
freights the state cannot require the
railroad corporation to carry persons
or property without regard; neiher
can it do that which in law amounts
to taking of private property for
public use without just compensation
or without due process of law
This dlctum of Justice Waite left
the law in much unsettled condi-
tion for several years thereafter and
the courts, in passing upon railroad
rate laws. found themselves at loss
as TO just what principle they should
base their decisions upon However
the case came up squarely before
Justice Brewer. then a circuit Judge,
in 1883. He took up the dictum of
Justice Waite and declared IL to be
the law. This case arose In Iowa.
In passing upon that case Justice
Brewer uses this language:
1t is obvious from the last quo
tation that the mere fact that the leg
islature has pursued the forms of
law in prescribing schedule Of
rates does not prevent inquiry by the
courts and the question Is oDen ana
must be decided in each case.
Whether the rates prescribed are
within the limits of legislative pow
er, or mere proceedings which. in the
end, II not restrained. will work
confscation OF the property of com
plainant. or course some rule must
exist fixing definite, TO control the
action of the courts. for II cannot be
that a chancellor Is at liberty 10 sub
stitute his discretion as to the reas-
onableness of rates for that Of the
legislature
THE right of judicial mterfer-
ence exists only when the schedule
of rates established win fail to Sc
cure to the owners OF the property
some compensation or income from
their investment. As TO the amount
OF such compensation. II some COM
pensatlon or reward Is In fact Sc
cured. the legislature is the sole
Judge. The question is one alone OF
policy The rule. therefore, 10 b.
laid down Is this; That where the !
supposed rates will give some com
persation. however small. to the !
owner of railroad property, the !
courts have no power TO interfere. !
Appeal must then be made to the !
legislature and 10 the people
This Is an enunciation OF the doc
trine of judicial review, in it's infant
state. IL will be noted. however.
that the ruling as to some compeDsa-
tion did not meet with favor with
the railroads and in the later deci- J
sions the word some has been con
strued to mean reasonable. or prof
table. In 1890 the test case came
and was decided by divided court.
The case is known as the Chicago NJ.
& S. Co.. VS.. Minnesota, reported in
1874 u. S. The majority opinion
was rendered by Justice Blatchford
in which he says. referring TO the I
Minnesota statutes. that it conflicts
..fth tha .on.tffufFon of the limited n