s in effect asserting that the imposition of a rate so low as to
damage or diminish private property ceased to be an exercise of a
State's police power and became one of eminent domain. Nevertheless,
even the added measure of protection afforded by the doctrine of the
Railroad Commission Cases proved inadequate to satisfy public utilities;
for through application of the latter the courts were competent to
intervene only to prevent legislative imposition of a confiscatory rate,
a rate so low as to be productive of a loss and to amount to a taking of
property without just compensation. Nothing less than a judicial
acknowledgment that when the "reasonableness" of legislative rates is
questioned, the courts should finally dispose of the contention was
deemed sufficient by such businesses to afford the relief desired; and
although as late as 1888[193] the Court doubted that it possessed the
requisite power, it finally acceded to the wishes of the utilities in
1890, and, in Chicago, M. & St. P.R. Co. _v._ Minnesota[194] ruled as
follows: "The question of the reasonableness of a rate * * *, involving
as it does the element of reasonableness both as regards the company and
as regards the public, is eminently a question for judicial
investigation, requiring due process of law for its determination. If
the company is deprived of the power of charging rates for the use of
its property, and such deprivation takes place in the absence of an
investigation by judicial machinery, it is deprived of the lawful use of
its property, and thus, in substance and effect, of the property itself,
without due process of law * * *"

Despite a last hour attempt, in Budd _v._ New York,[195] to reconcile
Munn _v._ Illinois with Chicago, M. & St. P.R. Co. _v._ Minnesota by
confining application of the latter decision to cases wherein rates had
been fixed by a commission and denying its pertinence to rates directly
imposed by a legislature, the Court, in Reagan _v._ Farmers' Loan and
Trust Co.,[196] set at rest all lingering doubts as to the scope of
judicial intervention by declaring that, "if a carrier," in the absence
of a legislative rate, "attempted to charge a shipper an unreasonable
sum," the Court, in accordance with common law principles, will pass on
the reasonableness of its rates and has "jurisdiction * * * to award to
the shipper any amount exacted * * * in excess of a reasonable rate;
* * * The province of the courts is not changed, nor th