"[26]
Although, even at that relatively early day, this conservatism met with
strong opposition within the Court itself, the pressure of vested wealth
did not gather enough momentum to overcome the inertia of the bench for
nearly another generation. It was the concentration of capital in
monopoly, and the consequent effort by the public to regulate monopoly
prices, which created the stress which changed the legal equilibrium.
The modern American monopoly seems first to have generated that amount
of friction, which habitually finds vent in a great litigation, about
the year 1870; but only some years later did the states enter upon a
determined policy of regulating monopoly prices by law, with the
establishment by the Illinois legislature of a tariff for the Chicago
elevators. The elevator companies resisted, on the ground that
regulation of prices in private business was equivalent to confiscation,
and so in 1876 the Supreme Court was dragged into this fiercest of
controversies, thereby becoming subject to a stress to which no
judiciary can safely be exposed. Obviously two questions were presented
for adjudication: The first, which by courtesy might be termed legal,
was whether the fixing of prices by statute was a prerogative which a
state legislature might constitutionally exercise at all; the second,
which was purely political, was whether, admitting that, in the
abstract, such a power could be exercised by the state, Illinois had,
in this particular case, behaved _reasonably_.
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