IV
There is no doubt of the competency of the State to prescribe the weight of a loaf of bread, as it may declare what weight shall constitute a pound or a ton. But I deny the power of any Legislature under our government to fix the price which one shall receive for his property of any kind. If the power can be exercised as to one article, it may as to all articles, and the prices of everything, from a calico gown to a city mansion, may be the subject of legislative direction.[1]
So wrote Justice Field in a dissenting opinion in Munn v. Illinois. In the light of the general trend of court decisions as well as of legislation, it is apparent that this view is altogether too sweeping. If the highest court in the land has occasionally set at naught the railway legislation of congress and of the states, it has also brought the railways within the condemnation of the anti-trust act in the Trans-Missouri Freight, Joint Traffic and Northern Securities cases. Moreover, adverse court decisions have in large measure been overcome by additional legislation. Probably not a single member of the Supreme Bench to-day regards the view expressed by Justice Field as good law.
There has been a marked tendency during the last decade to clothe the railway commissions of the several states with more drastic powers. Some states have even gone so far as to fix rates by legislative enactment in addition to creating a commission with mandatory power.
No less than fifteen new or remodeled commissions were created in the two years 1905-1907, bringing the total number by 1908 to thirty-nine. Practically all of these were of the so-called "strong" type; that is to say, possessing the most extensive powers over all matters of rate operation and in many cases of finance as well. The most notable of these, of course, were the so-called Public Utility Commissions of Wisconsin (1905) and New York (1907). The subjugation of the formerly dominant railway interests in New Jersey and Pennsylvania was also highly significant. The movement has even invaded the New England States—so long a sanctuary of the ' ' weak ' ' or advisory commission. Vermont and New Hampshire set up powerful boards, . . .[2]
The consolidation of railways, the rise of freight rates in the years following 1900, "the inordinate concentration of financial power in the hands of a few privileged individuals," and the power of the newly created industrial combinations to secure concessions in rates contributed to this result.[3] The same conditions have made for more stringent federal control of the railways. Even Massachusetts has given up her advisory commission. For years this staid old commonwealth stood out for a "weak" commission. It was confidently claimed that such a commission had all the advantages of one of the strong type minus the disadvantages. On the one hand, if backed by public opinion,
