82 THE POPULAR SCIENCE MONTHLY 



upon the doctrine of charter rights announced in the Dartmouth College 

 case, and placed great store upon the constitutional guaranties of pri- 

 vate property to which certain decisions by state courts seemed to lend 

 color. In 1869, the Supreme Court of Iowa decided that a railway is 

 essentially private property and in no sense public, and in the following 

 year the Supreme Courts of Wisconsin and Michigan handed down 

 similar decisions. 1 In 1871, Judge Brewer, then a member of the 

 Supreme Court of Kansas, in a dissenting opinion said : 



A railroad is founded upon an absolute property-interest. The corporation 

 owns everything. The interests it possesses have all the attributes of absolute 

 property.2 



These opinions appear in cases where the right of railway companies 

 to enforce the levying or payment of taxes voted to subsidize construc- 

 tion was questioned on the ground that a tax for a private purpose is 

 invalid. 



In the face of these opinions, the contention of the railway attorneys 

 was overruled and the regulative power of the state was upheld in 

 Munn v . Illinois, Euggles v. Illinois and other cases. It was held that 

 property embarked in a railway is clothed with a public purpose and 

 therefore properly falls within the police power of the state. The fact 

 that a railway corporation is the creature of the state, in the opinion of 

 the Supreme Court, constituted an additional ground for state control 

 of rates. In regard to the Dartmouth College case, the rule of strict 

 interpretation of all charter rights was adopted. It was maintained 

 that the right of the state to regulate railway rates can only be bargained 

 away by language that admits of no uncertainty, that any and all doubts 

 about the meaning of charters are to be construed in favor of the state, 

 and that the power of the state to regulate does not lapse by non-user. 

 In the early "granger decisions," the Supreme Court even went so far 

 as to say that the final authority in the fixing of rates rested with the 

 legislature and not with the courts, and that if the former reduced rates 

 unduly the remedy of the railway interests was political rather than 

 judicial. But in Chicago, Milwaukee and St. Paul Railway Co. v. 

 Minnesota in 1890, it was held that a rate fixed by a state railway com- 

 mission is subject to judicial review. Under this and subsequent deci- 

 sions, the reasonableness of practically every rate fixed by a state legis- 

 lature, either directly or through a commission, can be called in question 

 in the federal courts, and the police power vested in the state legislatures 

 is subjected to an important restriction. 



i Iowa Supreme Court Reports, 27, p. 28. Wisconsin Supreme Court Reports, 

 25, p. 167. Michigan Supreme Court Reports, 20, p. 452. These references are 

 taken from an unpublished manuscript upon "Farmers' Organizations, the Su- 

 preme Court and the Railroads, ' ' by my father, Simon Emerick. 



2 Kansas Supreme Court Reports, 7, p. 542 



