538 HARVARD LAW REVIEW no "right, by arbitrarily increasing freight rates, to divert at any time to their own treasuries a share of the profits of successful in- dustries or occupations." The Supreme Court ^^ did not discuss or formulate the rules that, even when the consumer is particu- larly prosperous and the service particularly advantageous to him, rates may not reasonably be fixed by the utihty above the cost of the service, and that, if so fixed, they may constitutionally be reduced to cost by the state. No attack on the commission's action on constitutional grounds seems to have been made. But both rules are involved in the court's action in sustaining the com- mission's rates and affirming the decrees against the companies. For the commission and the lower courts had acted on both rules, and an opposite rule on either point would have led to an opposite conclusion and a reversal. It must be supposed that, if the Con- stitution were violated by forcing rates down to the cost of the service regardless of its value, the Supreme Court would have taken judicial notice of the fact and refrained from doing so. In the Illinois Central case, it said : "The question submitted to the Commission . . . was one which turned on matters of fact. In that question, of course, there were ele- ments of law, but we cannot see that any one of these or any circum- stance probative of the conclusion was overlooked or disregarded." '^ These decisions are reenforced by the analogy of the rule, which the Supreme Court has not only apphed but plainly expressed that rates may not be fixed below cost by the state : ^ and there is nothing from that court to set against them except broad dicta to the general effect that value is as important as cost. There is, in fact, little disposition in any quarter to give the general proposi- tion that value of service is as important as cost any specific apphca- tion to the situation in which value is thought to exceed cost. It is hardly disputed (otherwise than by the assertion of the general proposition in question) that rates which exceed cost constitu- tionally may, and legally should, be reduced to cost, whatever the value of the service. Every American decision or statement ^ Illinois Central Railroad v. Interstate Commerce Commission, 206 U. S. 441 (1907); Southern Railway v. Tift, 206 U. S. 428 (1907). " Illinois Central Railroad v. Interstate Commerce Commission, 206 U. S. 441, 466 (1907). " Notes 55 and 56, supra.
