found not to offend the Constitution, and that the criterion of fault to which the employer claimed himself entitled was an external standard, applied by a jury, "which the defendant has to satisfy at his peril and which he may miss after giving the matter his best thought." Of the public policy justifying the statute he said: "There is no more certain way of securing attention to the safety of the men, an unquestionably constitutional object of legislation, than by holding the employer liable for accidents."

PUBLIC UTILITIES

Several minor complaints of carriers may be treated briefly. Denver & Rio Grande R. Co. v. Denver66 found no lack of due process in requiring the removal of a side track from the highway when the road had other means of reaching the desired goal, the existing tracks menaced safety, and removal was less burdensome to the road than building a tunnel or viaduct would be. Chicago & N. W. Ry. Co. v. Ochs67 sustained an order requiring the extension of a side track, partly at the expense of the carrier, from the main line to a manufacturing plant, the same being not merely a private siding, but additional trackage for public use, and wholly under the control of the carrier. Lake Erie & W. R. Co. v. State Public Utilities Commissions approved an order to restore a similar track which the road had removed. The circumstances of each case were such that the respective orders were deemed reasonable and therefore not takings of property without due process nor for a public use without just compensation.

Detroit & M. R. Co. v. Fletcher Paper Co.69 withheld comfort from a carrier which complained that the state denied it opportunity to contest the reasonableness of rates in proceedings brought by shippers for overcharge. Such opportunity had been offered and availed of in prior proceedings and the court declared that "there is nothing to hinder a State from providing that after a judicial inquiry into the validity of such an order it shall be binding upon the parties until changed."

Of much greater importance were three cases on the question of reasonable rates. Lincoln Gas & Electric Light Co. v. Lincoln sus

** (1919) 250 U. S. 241, 39 Sup. Ct. 450, footnote 38, supra.

67 (1919) 249 U. S. 416, 39 Sup. Ct. 343.

68 (1919) 249 U. S. 422, 39 Sup. Ct. 345. ** (1918) 248 U. S. 30, 39 Sup. Ct. 13.

tained the findings of the master that the rates fixed were not confiscatory, because on all the evidence and having regard to the entire period under investigation and in the absence of a practical test the Supreme Court was unable to say that he was wrong. The evidence is not set forth, so that the approval of the master's findings does not shed new light on the law of rate regulation. Mr. Justice Pitney, however, stated specifically that the court disapproved of the "finding that no rate yielding as much as 6 per cent upon the invested capital could be regarded as confiscatory," since 8 per cent was the lowest rate sought and generally obtained in the community for money invested in banking and mercantile enterprises, and the "legal rate" in the state was 7 per cent. "Complainant had not such a monopoly nor were its profits 'virtually guaranteed' in such a sense as to permit the public authorities to restrict it to a return of 6 per cent upon its invested capital." It is to be noted that the reference is to "invested capital" and not to the present "fair value" of the plant. The opinion therefore does not show that the Supreme Court is disposed to deny that 6 per cent is a "fair return on fair value."

In sustaining the dismissal of the bill, the Supreme Court was careful to order it modified so as to leave the complainant a chance to try again if later operations brought forth different results, though Mr. Justice Pitney observed that "perhaps it would go without saying." This shows plainly enough that a decree holding rates not confiscatory is not res adjudicata as to the future. After remarking that it is common knowledge that the cost of labor and supplies has greatly advanced, Mr. Justice Pitney added: "And it is equally well known that annual returns upon capital and enterprise the world over have materially increased, so that what would have been a proper rate of return for capital invested in gas plants and similar public utilities a few years ago furnishes no safe criterion for the present or for the future." Here are hints of little less importance than explicit adjudications.

What Mr. Justice Clarke in dissenting called "the novel doctrine of the Denver Union Water Company Case" was reaffirmed by a divided court in Detroit United Ry. Co. v. Detroit." A street railway company, whose franchise on certain streets had expired and which concededly might have been forbidden to operate and required to remove its tracks, brought a bill to enjoin the city from enforcing an ordinance regulating its fares. It alleged that the enforcement

1 (1919) 248 U. S. 429, 39 Sup. Ct. 151. See 19 Columbia Law Review 153. 32 Harvard Law Review 736, and 17 Michigan Law Review 347.

of the ordinance would result in a deficit in operations, and under the pleadings this allegation was taken as confessed by the city. The majority held, as in the Denver case," that the ordinance in effect amounted to a grant to the road to continue operations and that for this public service the company was entitled to a fair return on its investment. Mr. Justice Day stated that the city "elected to require maintenance of the public service," but the ordinance as quoted on the margin contains no such requirement, but merely forbids those operating street railroads to charge more than the designated fares. Plainly the so-called requirement is a matter of inference from the imposition of rates plus the failure to forbid operations. For the minority, consisting of himself and Justices Holmes and Brandeis, Mr. Justice Clarke observed: "The utmost that can be claimed for the ordinance is that it suffers the company to use the streets which it could not use at all without it—for the company to use them in any other way than as thus permitted would be unlawful. Yet this mere offer of a naked privilege, in terms revocable at will, is held to give a constitutional right and at the same time to so violate that right as to render the ordinance invalid. I cannot bring myself to understand how, except by sheer assertion of power, even the apparent justice of the result which it is hoped thus to obtain can be made the basis for creating a constitutional right where no right whatever existed before the passing of this rejected ordinance."

The happy state of being without a franchise was sought by the complainant in Columbus Ry. Power & Light Co. v. Columbus,73 but not attained. The company sought to enjoin the city from requiring it to continue service at the rates stipulated in its franchise which still had some years to run. Its unaccepted surrender of its franchise was held not to relieve it from the obligation of its contract to serve at the designated rates of fare, and the fact that such service would be unremunerative, which was confessed by the motion to dismiss, was held no excuse. The contention that the franchises were merely permissive was rejected by the court. The increase of costs due to an arbitral award of the war labor board raising the wages of employees was declared not to be a direct intervention of the government which excused performance by rendering it impossible. Such comfort as owners of street railroad securities can wrench from the case must be

(1918) 246 U. S. 178, 13 American Political Science Review 66. 73 (1919) 249 U. S. 399, 39 Sup. Ct. 349.

This case is followed in Burr v. Colum

discovered in the remarks in the opinion that "there is no showing that the contracts have become impossible of performance" or "any allegation establishing the fact that taking the whole term together the contracts will necessarily be unprofitable." But such hopes as these expressions may raise must be somewhat dimmed by the reference to "the principle, frequently declared in decisions of this court, that if a party charge himself with an obligation possible to be performed, he must abide by it unless performance is rendered impossible by the act of God, the law, or the other party." To this was added: "Unforeseen difficulties will not excuse performance. Where the parties have made no provision for a dispensation, the terms of the contract must prevail."74

(To be concluded)

74 In Public Utility Commissioners v. Manilla Electric R. & L. Co., (1919) 249 U. S. 262, 39 Sup. Ct. 272, the court found no constitutional question in a complaint by a public utilities commission that the territorial court had construed an ordinance requiring free transportation of members of the police department wearing official badges as not applicable to detectives with such badges concealed.