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Dissenting Opinion: Bradley, Gray, Lamar, JJ.

It is complained that the decisions of the board are final and without appeal. So are the decisions of the courts in matters within their jurisdiction. There must be a final tribunal somewhere for deciding every question in the world. Injustice may take place in all tribunals. All human institutions are imperfect courts as well as commissions and legislatures. Whatever tribunal has jurisdiction, its decisions are final and conclusive unless an appeal is given therefrom. The important question always is, what is the lawful tribunal for the particular case? In my judgment, in the present case, the proper tribunal was the legislature, or the board of commissioners which it created for the purpose.

If not in terms, yet in effect, the present cases are treated as if the constitutional prohibition was, that no state shall take private property for public use without just compensation, and as if it was our duty to judge of the compensation. But there is no such clause in the constitution of the United States. The Fifth Amendment is prohibitory upon the federal government only, and not upon the state governments. In this matter, just compensation for property taken for public use,the states make their own regulations, by constitution, or otherwise. They are only required by the federal Constitution to provide "due process of law." It was alleged in Davidson V. New Orleans, 96 U. S. 97, that the property assessed was not benefited by the improvement; but we held that that was a matter with which we would not interfere; the question was, whether there was due process of law. p. 106. If a state court renders an unjust judgment, we cannot remedy it. I do not mean to say that the legislature, or its constituted board of commissioners, or other legislative agency, may not so act as to deprive parties of their property without due process of law. The Constitution contemplates the possibility of such an invasion of rights. But, acting within their jurisdiction, (as in these cases they have done,) the invasion should be clear and unmistakable to bring the case within that category. Nothing of the kind exists in the cases before us. The legislature, in establishing the commission, did not exceed its power; and the commission, in acting upon the cases, did not

VOL. CXXXIV-30

Dissenting Opinion: Bradley, Gray, Lamar, JJ.

exceed its jurisdiction, and was not chargeable with fraudulent behavior. There was merely a difference of judgment as to amount, between the commission and the companies, without any indication of intent on the part of the former to do injustice. The board may have erred; but if they did, as the matter was within their rightful jurisdiction, their decision was final and conclusive unless their proceedings could be impeached for fraud. Deprivation of property by mere arbitrary power on the part of the legislature, or fraud on the part of the commission, are the only grounds on which judicial relief may be sought against their action. There was, in truth, no deprivation of property in these cases at all. There was merely a regulation as to the enjoyment of property, made by a strictly competent authority, in a matter entirely within its jurisdiction.

It may be that our legislatures are invested with too much power, open, as they are, to influences so dangerous to the interests of individuals, corporations and society. But such is the Constitution of our republican form of government; and we are bound to abide by it until it can be corrected in a legitimate way. If our legislatures become too arbitrary in the exercise of their powers, the people always have a remedy in their hands; they may at any time restrain them by constitutional limitations. But so long as they remain invested with the powers that ordinarily belong to the legislative branch of government, they are entitled to exercise those powers, amongst which, in my judgment, is that of the regulation of railroads and other public means of intercommunication, and the burdens and charges which those who own them are authorized to impose upon the public.

I am authorized to say that Mr. Justice Gray and Mr. Jus tice Lamar agree with me in this dissenting opinion.

Argument for Defendant in Error.

MINNEAPOLIS EASTERN RAILWAY COMPANY v.

MINNESOTA.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

No. 1113. Argued January 13, 14, 1890.-Decided March 24, 1890.

The case of Chicago, Milwaukee & St. Paul Railway Co. v. State of Minnesota, ante, 418, affirmed, on substantially the same state of facts. The statutory provisions existing in the present case as to the fixing by the railroad company of reasonable charges for the transportation of property, did not constitute such a contract with it, as to deprive the legislature of its power to regulate those charges.

THIS was argued with Chicago, Milwaukee & St. Paul Railway Co. v. State of Minnesota, ante, 418, the two causes presenting substantially the same questions. The case is stated in the opinion.

Mr. W. C. Goudy and Mr. James H. Howe for plaintiff in Mr. W. H. Norris filed a brief for same.

error.

Mr. Moses E. Clapp and Mr. H. W. Childs, for defendant in error, urged the same considerations as in the previous case, and further, on the point on which the opinion turns, as follows:

The act in question does not amount to taking property without due process of law.

We do not think it necessary to follow counsel for plaintiff in error in their discussion of what is meant by due process of law. Stress is laid upon the fact that, by the terms of the law under consideration, no notice was given of the contemplated action of the commission. We think counsel have confounded an attempted taking of property by the State with the simple exercise of a legislative function in the enactment of a law.

While the order in question was made by the commission, yet under the construction of the law placed upon it by the

Argument for Defendant in Error.

Supreme Court of Minnesota, which construction is binding upon this court, the act of establishing the rate in question is a legislative act. In fact it is upon this theory that it had to be sustained. The rate as fixed must be considered as fixed by the legislature and no notice was necessary. Had the legislature by express terms declared that the plaintiff should charge no rate above one dollar per car, it would not be suggested that such an act would be void because the company had received no notice of its contemplated passage. If a legislature may regulate rates, and in doing so act through the medium of a commission, a notice of any contemplated action by the commission would no more be required, unless required by the terms of the act itself, than notice of the probable passage of the act.

The operation of the act would not amount to a taking of private property without compensation.

That this would be the effect of any and all regulations is, it seems to us, a sufficient answer in itself. Any regulation that, in the slightest degree, reduces the earnings of a common carrier must then be said to amount to a taking of property without compensation; but this court has affirmed the right to regulate rates when unrestrained by special charter, and until the case at bar, the right has not been questioned. The right to regulate necessarily involves the right to reduce the income of the company.

In Railroad Commission Cases, 116 U. S. 307, the court says: "General Statutes, regulating the use of railroads in a state, or fixing maximum rates of charges for transportation, when not forbidden by charter contracts, do not necessarily deprive the corporation, owning or operating a railroad within the State, of its property without due process of law, within the meaning of the Fourteenth Amendment of the Constitution of the United States, nor take away from the corporation the equal protection of the laws. Munn v. Illinois, 94 U. S. 113, 134, 135; Railroad Company v. Richmond, 96 U. S. 521, 529; Spring Valley Water Works v. Schottler, 110 U. S. 347, 354."

In Georgia Banking Co. v. Smith, 128 U. S. 174, 179, the

Opinion of the Court.

court says, "It has been adjudged by this court in numerous instances that the legislature of a state has the power to prescribe the charges of a railroad company for the carriage of persons and merchandise within its limits, in the absence of any provision in the charter of the company constituting a contract vesting in it authority over those matters, subject to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use without just compensation, and that what is done does not amount to a regulation of foreign or interstate Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 325, 331; Dow v. Beidelman, 125 U. S. 680."

commerce.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a writ of error to the Supreme Court of the State of Minnesota, to review its judgment awarding a peremptory writ of mandamus against the Minneapolis Eastern Railway Company, commanding it to comply with the requirements of the recommendation and order made by the Railroad and Warehouse Commission of the State of Minnesota, on the 2d of August, 1887, and to change its tariff of rates and charges for handling and switching any car over the lines of its railway in the city of Minneapolis, regardless of the distance or the character of the freight in such car, and to substitute therefor the tariff recommended, published and posted by said commission, to wit, the rate of $1.00 for handling and switching any car over its line of railway in said city, regardless of the distance or the character of the freight in such car, being the rate published by the commission and declared to be equal and reasonable. The case arose under the same statute considered in the case of Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota, just decided, ante, 418.

The Minneapolis Eastern Railway Company was and is a railroad corporation duly created and organized under the general railroad law of the State of Minnesota, operating one or more lines of railway in the city of Minneapolis in that State, and a common carrier engaged in transporting freight

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