ould invite judicial
condemnation only if "arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt." The latter
standard of judicial appraisal, as will be subsequently noted,
represents less of a departure from the principle enunciated in the Munn
Case than that which the Court evolved, in the years following 1877, to
measure the validity of State imposed public utility rates, and this
difference in the judicial treatment of prices and rates accordingly
warrants an explanation at the outset. Unlike operators of public
utilities who, in return for the grant of certain exclusive, virtually
monopolistic privileges by the governmental unit enfranchising them,
must assume an obligation to provide continuous service, proprietors of
other businesses are in receipt of no similar special advantages and
accordingly are unrestricted in the exercise of their right to liquidate
and close their establishments. At liberty, therefore, as public
utilities invariably are not, to escape, by dissolution, the
consequences of publicly imposed charges deemed to be oppressive, owners
of ordinary business, presumably for that reason, have thus far been
unable to convince the courts that they too, no less than public
utilities, are in need of that protection which judicial review affords.

Consistently with its initial pronouncement in the Munn Case, that the
reasonableness of compensation allowed under permissible rate regulation
presented a legislative rather than a judicial question, the Court, in
Davidson _v._ New Orleans,[191] also rejected the contention that, by
virtue of the due process clause, businesses, even though subject to
control of their prices or charges, were nevertheless entitled to "just
compensation." Less than a decade was to elapse, however, before the
Court, appalled perhaps by prospective consequences of leaving business
"at the mercy of the majority of the legislature," began to reverse
itself. Thus, in 1886, Chief Justice Waite, in the Railroad Commission
Cases,[192] warned that "this power to regulate is not a power to
destroy; [and] the State cannot do that in law which amounts to a taking
of property for public use without just compensation or without due
process of law"; or, in other words, cannot impose a confiscatory rate.
By treating "due process of law" and "just compensation" as equivalents,
the Court, contrary to its earlier holding in Davidson _v._ New Orleans,
wa