On the contrary, it is
preeminently a legislative one, involving considerations of policy as
well as of remuneration.... By the decision now made we declare, in
effect, that the judiciary, and not the legislature, is the final
arbiter in the regulation of fares and freights of railroads.... It is
an assumption of authority on the part of the judiciary which, ... it
has no right to make. The assertion of jurisdiction by this court makes
it the duty of every court of general jurisdiction, state or federal, to
entertain complaints [of this nature], for all courts are bound by the
Constitution of the United States, the same as we are."
There is little to add to these words. When the Supreme Court thus
undertook to determine the reasonableness of legislation it assumed,
under a somewhat thin disguise, the position of an upper chamber, which,
though it could not originate, could absolutely veto most statutes
touching the use or protection of property, for the administration of
modern American society now hinges on this doctrine of judicial
dispensation under the Police Power. Whether it be a regulation of rates
and prices, of hours of labor, of height of buildings, of municipal
distribution of charity, of flooding a cranberry bog, or of prescribing
to sleeping-car porters duties regarding the lowering of upper
berths,--in questions great and small, the courts vote upon the
reasonableness of the use of the Police Power, like any old-fashioned
town meeting.
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