32
THE GREEN BAG
Finally, I recommend you to read Lossee v. Buchanan, 51 N. Y., 476, where various dicta in Rylands v. Fletcher are criticised. An analogous analysis may be applied to the issue of "reasonableness" where one of two parties is under a servitude and the government intervenes to correct the inequality. Let us take the railway rate. A rate is imposed upon the public by a superior power. The complainant has no alterna tive but to pay, for transportation is to him a necessity. The question presented is whether that price, fixed by a corporation through an exercise of a delegated attribute of sovereignty, is a reasonable manifesta tion of a volition. I apprehend that no rate can be intrinsi cally reasonable or unreasonable. It is only reasonable or the reverse according as it may conform to an intellectual con ception existing in the mind of the tribunal having jurisdiction of the cause. That intellectual conception is an effect of a social environment, which, indeed, is the cause that the rate should exist at all. All the facts which constitute that environ ment are more or less relevant as bearing upon the ideal standard which shall finally measure "reasonableness, " and among these facts are the mental attitude of the parties to the case, together with the rate itself. The rate must be analyzed, its component parts shown, and inferences must be drawn therefrom to explain the motives which con trolled the volition of him who made it. For, in such cases, volition is a most impor tant factor in the litigation. He who makes a rate has the intent to raise money from the public and this intent is lawful if the amount raised be "reason able " and the motive be only to obtain a revenue. But supposing the rate maker act from mixed motives, one of which is, in fixing upon that particular rate, to com bine with another corporation as a mono poly to control prices; I apprehend that for entertaining this secret motive the rate
maker may be indicted and imprisoned, although the rate, in absolute amount, may be "reasonable." The inference is that a rate, by itself, can hardly be a direct issue. It is evidence bearing upon the issues directly involved, which are always a series of intellectual con ceptions. These conceptions are to be created or analyzed by the aid of facts, of which the rate is one. To try a cause involving the "reasonable ness " of rates, the first task is to adduce and marshal evidence which shall create a cer tain ideal standard of "reasonableness" which shall meet your purpose. Then the particular rate complained of is to be intro duced to prove that the standard which has been created in the mind of the tribunal is not enforced. The second task is to analyze the volition of the rate maker, by the aid of all evidence both direct and circumstantial, in order to show a corrupt animus, because of which animus any rate he might impose, whether high or low, would be an unlawful, or even a criminal act. Approaching thus dispassionately the seething caldron of modern competition we soon perceive that courts can no more escape from the constraint of their environments, than can railways, trade unions, money lenders, manufacturers, or the tides of the ocean. The law which regulates a society must be as fluid as is the society which creates the law. Hence in periods of rapid change courts can follow no inflexible rules, they can be bound by no precedents which lead from fixed premises to an inexorable conclusion. They are creatures of circum stances and must yield to the force which created and which upholds them, like all else in nature. Recognizing this necessity, I take it to be the lawyer's part to study the causes of which judicial judgments are the effect, to the end that he may learn to measure in telligently the relative energy of the forces locked in the controversies in which he may
