try deemed appropriately subject to such
controls. Thus, in Munn _v._ Illinois,[173] the first of the "Granger"
cases, in which maximum charges established by a State legislature for
Chicago grain elevator companies were challenged, not as being
confiscatory in character, but rather as a regulation beyond the power
of any State agency to impose, the Court, in an opinion that was largely
an _obiter dictum_, declared that the due process clause did not operate
as a safeguard against oppressive rates, that if regulation was
permissible, the severity thereof was within legislative discretion and
could be ameliorated only by resort to the polls. Not much time was
permitted to elapse, however, before the Court effected a complete
withdrawal from this position; and by 1890[174] it had fully converted
the due process clause into a positive restriction which the judicial
branch is duty bound to enforce whenever State agencies seek to impose
rates which, in its estimation, are arbitrary or unreasonable.

In contrast to the speed with which the Court arrived at those above
mentioned conclusions, more than fifty years were to elapse before it
developed its currently applicable formula for determining the propriety
of subjecting specific businesses to State regulation of their prices or
charges. Prior to 1934, unless a business were "affected with a public
interest," control of its prices, rates, or conditions of service was
viewed as an unconstitutional deprivation of liberty and property
without due process of law. During the period of its application,
however, this standard, "business affected with a public interest,"
never acquired any precise meaning; and as a consequence lawyers were
never able to identify all those qualities or attributes which
invariably distinguished a business so affected from one not so
affected. The best the Court ever offered by way of enlightenment was
the following classification of businesses subject to regulation,
prepared by Chief Justice Taft.[175] These were said to comprise: "(1)
Those [businesses] which are carried on under the authority of a public
grant of privileges which either expressly or impliedly imposes the
affirmative duty of rendering a public service demanded by any member of
the public. Such are the railroads, other common carriers and public
utilities. (2) Certain occupations, regarded as exceptional, the public
interest attaching to which, recognized from earliest times, has
surv