just as they would be at the command of the legislature which created it. Such a body, though not a court, is a proper tribunal for the duties imposed upon it.

In the case of Davidson v. City of New Orleans, 96 U. S. 97, we decided that the appointment of a board of assessors for assessing damages was not only due process of law, but the proper method for making assessments to distribute the burden of a public work amongst those who are benefited by it. No one questions the constitutionality or propriety of boards for assessing property for taxation, or for the improvement of streets, sewers and the like, or of commissions to establish county seats, and for deing many other things appertaining to the administrative management of public affairs. Due process of law does not always require a court. It merely requires such tribunals and proceedings as are proper to the subject in hand. In the Railroad Commission Cases, 116 U. S. 307, we held that a board of commissioners is a proper tribunal for determining the proper rates of fare and freight on the railroads of a State. It seems to me, therefore, that the law of Minnesota did not prescribe anything that was not in accordance with due process of law in creating such a board, and investing it with the powers in question.

It is complained that the decisions of the board are final and without appeal. So are the decisions of the courts in matters within their jurisdiction. There must be a final tribunal somewhere for deciding every question in the world. Injustice may take place in all tribunals. All human institutions are imperfect courts as well as commissions and legislatures. Whatever tribunal has jurisdiction, its decisions are final and conclusive unless an appeal is given therefrom. The important question always is, what is the lawful tribunal for the particular case? In my judgment, in the present case, the proper tribunal was the legislature, or the board of commissioners which it created for the purpose.

If not in terms, yet in effect, the present cases are treated as if the constitutional prohibition was, that no State shall take private property for public use without just compensation, - and as if it was our duty to judge of the compensation. But there is no such clause in the Constitution of the United States. The Fifth Amendment is prohibitory upon the Federal government only, and not upon the State governments. In this matter, just compensation for property taken for public use, the States make their own regulations, by constitution, or otherwise. They are only required by the Federal Constitution to provide due process of law." It was alleged in Davidson v. New Orleans, 96 U. S. 97, that the property assessed was not benefited by the improvement; but we held that that was a matter with which we would not interfere; the question was, whether there was due process of law. p. 106. If a State court renders an unjus judgment, we cannot remedy it.

I do not mean to say that the legislature, or its constituted board of commissioners, or other legislative agency, may not so act as to deprive parties of their property without due process of law. The Constitution contemplates the possibility of such an invasion of rights. But, acting within their jurisdiction (as in these cases they have done), the invasion should be clear and unmistakable to bring the case within that category. Nothing of the kind exists in the cases before us. The legislature, in establishing the commission, did not exceed its power; and the commission, in acting upon the cases, did not exceed its jurisdiction, and was not chargeable with fraudulent behavior. There was merely a difference of judgment as to amount, between the commission and the companies, without any indication of intent on the part of the former to do injustice. The board may have erred; but if they did, as the matter was within their rightful jurisdiction, their decision was final and conclusive unless their proceedings could be impeached for fraud. Deprivation of property by mere arbitrary power on the part of the legislature, or fraud on the part of the commission, are the only grounds on which judicial relief may be sought against their action. There was, in truth, no deprivation of property in these cases at all. There was merely a regulation as to the enjoyment of property, made by a strictly competent authority, in a matter entirely within its jurisdiction.

It may be that our legislatures are invested with too much power, open, as they are, to influences so dangerous to the interests of individuals, corporations and society. But

such is the constitution of our republican form of government; and we are bound to abide by it until it can be corrected in a legitimate way. If our legislatures become too arbitrary in the exercise of their powers, the people always have a remedy in their hands; they may at any time restrain them by constitutional limitations. But so long as they remain invested with the powers that ordinarily belong to the legislative branch of government, they are entitled to exercise those powers, amongst which, in my judgment, is that of the regulation of railroads and other public means of intercommunication, and the burdens and charges which those who own them are authorized to impose upon the public.

I am authorized to say that Mr. Justice Gray and Mr. Justice Lamar agree with me in this dissenting opinion.1

In Budd v. N. Y., 143 U. S. 517 (1892), the Supreme Court of the United States, after reaffirming the doctrine of Munn v. Ill., 94 U. S. 113 (for which see that case, infra, p. 743), BLATCHFORD, J., for the court said: "It is further contended that, under the decision of this court in Chicago, &c. Railway Co. v. Minnesota, 134 U. S. 418, the fixing of elevator charges is a judicial question, as to whether they are reasonable or not; that the statute must permit and provide for a judicial settlement of the charges; and that, by the statute under consideration, an arbitrary rate is fixed, and all inquiry is precluded as to whether that rate is reasonable or not.

"But this is a misapprehension of the decision of this court in the case referred to. In that case, the Legislature of Minnesota had passed an Act which established a railroad and warehouse commission, and the Supreme Court of that State had interpreted the Act as providing that the rates of charges for the transportation of property by railroads, recommended and published by the commission, should be final and conclusive as to what were equal and reasonable charges, and that there could be no judicial inquiry as to the reasonableness of such rates A railroad company, in answer to an applica tion for a mandamus, contended that such rates in regard to it were unreasonable, and, as it was not allowed by the State Court to put in testimony in support of its answer, on the question of the reasonableness of such rates, this court held that the statute was in conflict with the Constitution of the United States, as depriving the company of its property without due process of law, and depriving it of the equal protection of the laws. That was a very different case from one under the statute of New York in question here, for in this instance the rate of charges is fixed directly by the legislature. See Spencer v. Merchant, 125 U. S. 345, 356. What was said in the opinion of the court in 134 U S. had reference only to the case then before the court, and to charges fixed by a commission appointed under an Act of the Iislature, under a Constitution of the State which provided that all corporations, being common carriers, should be bound to carry on equal and reasonable terms,' and under a statute which provided that all charges made by a common carrier for the transportation of passengers or property should be equal and reasonable.'

"What was said in the opinion in 134 U. S., as to the question of the reasonableness of the rate of charge being one for judicial investigation, had no reference to a case where the rates are prescribed directly by the legislature. Not only was that the case in the statute of Illinois in Munn v. Illinois, but the doctrine was laid down by this court in Wabash, &c. Railway Co. v. Illinois, 118 U. S. 557, 568, that it was the right of a State to establish limitations upon the power of railroad companies to fix the price at which they would carry passengers and freight, and that the question was of the same character as that involved in fixing the charges to be made by persons engaged in the warehousing business. So, too, in Dow v. Beidelman, 125 U. S. 680, 686, it was said that it was within the power of the legislature to declare what should be a reasonable compensation for the services of persons exercising a public employment, or to fix a maximum beyond which any charge made would be unreasonable.

"But in Dow v. Beidelman, after citing Munn v. Illinois, 94 U. S. 113 [and several

1 Compare Wellman v. Chic. &c. Ry. Co., 83 Mich. 592 (1890); Clyde et al. v. Richm & D. R. R. Co., 57 Fed. Rep. 436 (1893, C. C. U. S. So. Ca.).

other cases], as recognizing the doctrine that the legislature may itself fix a maximum beyond which any charge made would be unreasonable, in respect to services rendered in a public employment, or for the use of property in which the public has an interest, subject to the proviso that such power of limitation or regulation is not without limit, and is not a power to destroy, or a power to compel the doing of the services without reward, or to take private property for public use without just compensation or without due process of law, the court said that it had no means, if it would under any circumstances have the power,' of determining that the rate fixed by the legislature in that case was unreasonable, and that it did not appear that there had been any such confiscation of property as amounted to a taking of it without due process of law, or that there had been any denial of the equal protection of the laws.

"In the cases before us, the records do not show that the charges fixed by the statute are unreasonable, or that property has been taken without due process of law, or that there has been any denial of the equal protection of the laws; even if under any circumstances we could determine that the maximum rate fixed by the legislature was unreasonable."

Compare R. R. Co. v. Maryland, 21 Wall. 456, 471 (BRADLEY, J.); Spencer v. Merchant, ante, at p. 647; BRADLEY, J. (dissenting), in Chicago, &c. Ry. Co. v. Minnesota, ante, at p. 660, note; and Paulsen v. Portland, 149 U. S. 30, 38.

Of that [reasonableness], said the court (WAITE, C. J.), in Terry v. Anderson, 95 U. S. p. 633 (1877), "the legislature is primarily the judge; and we cannot overrule the decision of that department of the government, unless a palpable error has been committed." See Pickering Phipps v. Lond. & N. W. Ry. Co., 66 L. T. Rep. 721.

Compare the function of the court in revising the verdict of a jury: "Not merely must the jury's verdict be conformable to the rules of law, but it must be defensible in point of sense and reason; it must not be absurd or whimsical. This is obviously a different thing from imposing upon the jury the judge's private standard of what is reasonable; as, for example, when the question for the jury itself is one of reasonable conduct. In such a case, the judges do not undertake to set aside the verdict because their own opinion of what is reasonable in the conduct on trial differs from the jury's. The question for the court, it will be observed, is not whether the conduct ultimately in question, e. g., that of a party injured in a railroad accident, was reasonable, but whether the jury's conduct is reasonable in holding it to be so; and the test is whether a reasonable person could, upon the evidence, entertain the jury's opinion. Can the conduct, which the jury are judging, reasonably be thought reasonable? Is that a permissible view?"— Law and Fuct in Jury Trials, 4 Harv. Law Rev. 167, 168. And so further Origin and Scope of Am. Doct. Const. Law, 20–24.

In State v. Vandersluis, 42 Minn. 129, 131 (1889), the court (GILFILLAN, C. J.) said: "The only limit to the legislative power in prescribing conditions to the right to practise in a profession is that they shall be reasonable. Whether they are reasonable, that is, whether the legislature has gone beyond the proper limits of its power, — the courts must judge. By the term 'reasonable' we do not mean expedient, nor do we mean that the conditions must be such as the court would impose if it were called on to prescribe what should be the conditions. They are to be deemed reasonable where, although perhaps not the wisest and best that might be adopted, they are fit and appropriate to the end in view, to wit, the protection of the public, and are manifestly adopted in good faith for that purpose. If a condition should be clearly arbitrary and capricious; if no reason with reference to the end in view could be assigned for it; and, especially, if it appeared that it must have been adopted for some other purpose, such, for instance, as to favor or benefit some persons or class of persons, -it certainly would not be reasonable, and would be beyond the power of the legislature to impose."

It may be doubted that there is any difference between the action of a legislature and that of a legislative commission, as regards the questions involved in such a case as Chic., &c. Ry. Co. v. Minnesota, when once it is clear that the legislature has really

EILENBECKER v. PLYMOUTH COUNTY.

SUPREME COURT OF THE UNITED STATES.

[134 U. S. 31.]

THE case is stated in the opinion.

Mr. William A. McKenney, for plaintiffs in error.

1890.

Mr. J. S. Struble, Mr. S M. Marsh, and Mr. A. J. Baker, AttorneyGeneral of Iowa, for defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

This is a writ of error to the Supreme Court of the State of Iowa. The judgment which we are called upon to review is one affirmi.g the judgment of the District Court of Plymouth County in that State. This judgment imposed a fine of five hundred dollars and costs on each of the six plaintiffs in error in this case, and imprisonment in the jail of Plymouth County for a period of three months, but they were to be

undertaken to confer upon the commission the power in question, If the legislature can exercise it, it would seem that it may confer on the commission a like authority.

Yet, as regards subordinate bodies, there is always the question of construction, as to what authority has, in fact, been conferred on them; and in passing on this, established common-law principles are applicable, which, ordinarily, and in the absence of clear legislative intention to the contrary, enable the courts to control their action much more readily than that of the legislature itself. If a commission or a local board acts unreasonably, the courts may set aside their action as not authorized by the legislature. Similar action by the legislature itself can be condemned only if it be unconstitutional. In Leader v. Moxon et al., 2 W. Bl. 924, where paving commissioners, with general powers "to pave, repair, sink, or alter [a certain street] in such manner as the commissioners shall think fit," proceeded to raise "the footway contiguous to the plaintiff's houses to the height of six feet, but in a regular descent from one end of the street to the other, . . . whereby the doors and windows of the ground-floors of the said houses were totally obstructed," - it was held, that "the commissioners had grossly exceeded their powers, which must have a reasonable construction. Their discretion is not arbitrary, but must be limited by reason and law. . . . Had Parliament intended to demolish or render useless some houses for the benefit or ornament of the rest, it would have given express powers for that purpose and given an equivalent for the loss that individuals might have sustained thereby."

In Sharp v. Wakefield [1891] Appeal Cases, 173, 179, LORD CHANCELLOR HALSBURY, in speaking of the authority of licensing justices in regard to the sale of intoxicating liquors, said: "An extensive power is confided to the justices in their capacity as justices, to be exercised judicially; and 'discretion' means, when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, Rooke's Case, 5 Rep. 100 a; according to law, and not humor. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercise 1 within the limit to which an honest man competent to the discharge of his office ought to confine himself. Wilson v. Rastall, 4 T. R. at p. 757."

As to the general question of the legislative power over railroads, see also Ch., B. & Q. R. R. Co. v. Iowa, 94 U. S. 155 (1876), and R. R. Com. Cuses, 116 U. S. 307 (1885). - ED.

VOL. I.-43

released from confinement if the fine imposed was paid within thirty days from the date of the judgment.

This sentence was pronounced by the court as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining each of the defendauts from selling, or keeping for sale, any intoxicating liquors, including ale, wine and beer, in Plymouth County, and the sentence was imposed upon a hearing by the court, without a jury, and upon evidence in the form of affidavits.

It appears that on the 11th day of June, 1885, separate petitions in equity were filed in the District Court of Plymouth County against each of these plaintiffs in error, praying that they should be enjoined from selling, or keeping for sale, intoxicating liquors, including ale, wine and beer, in that county. On the 6th of July the court ordered the issue of preliminary injunctions as prayed. On the 7th of July the writs were served on each of the defendants in each proceeding by the sheriff of Plymouth County. On the 24th of October complaints were filed, alleging that these plaintiffs in error had violated this injunction by selling intoxicating liquors contrary to the law and the terms of the injunction served on them, and asking that they be required to show cause why they should not be punished for contempt of court. A rule was granted accordingly, and the court, having no personal knowledge of the facts charged, ordered that a hearing be had at the next term of the court, upon affidavits; and on the 8th day of March, 1886, it being at the regular term of said District Court, separate trials were had upon evidence in the form of affidavits, by the court without a jury, upon which the plaintiffs were found guilty of a violation of the writs of injunction issued in said cause, and a sentence of fine and imprisonment, as already stated, entered against them.

Each plaintiff obtained from the Supreme Court of the State of Iowa, upon petition, a writ of certiorari, in which it was alleged that the District Court of Plymouth County had acted without jurisdiction and illegally in rendering this judgment, and by agreement of counsel, and with the consent of the Supreme Court of Iowa, the cases of the six appellants in this court were submitted together and tried on one transcript of record. That court affirmed the judgment of the District Court of Plymouth County, and to that judgment of affirmance this writ of error is prosecuted. [Four assignments of error are here

stated.]

...

The first three of these assignments of error, as we have stated them, being the first and second and fourth of the assignments as numbered in the brief of the plaintiffs in error, are disposed of at once by the principle often decided by this court, that the first eight articles of the amendments to the Constitution have reference to powers exercised by the government of the United States and not to those of the States. Livingston v. Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; United States v. Cruik