Public Utilities I. the Quest for a Concept

Volume 40 Issue 3 Article 5 April 1934 Public Utilities I. The Quest for a Concept Thomas P. Hardman West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Judges Commons, and the Jurisprudence Commons Recommended Citation Thomas P. Hardman, Public Utilities I. The Quest for a Concept, 40 W. Va. L. Rev. (1934). Available at: https://researchrepository.wvu.edu/wvlr/vol40/iss3/5 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Hardman: Public Utilities I. The Quest for a Concept PUBLIC UTILITIES I. The Quest for a Concept - Another Word. THomAs P. HARDMANO For many years judges, lawyers and law teachers generally said or assumed that legal precepts, i. e., those authoritative gen- eralizations which we usually call rules, principles, standards,' are the only "legal" elements in common-law decisions. The ratio decidendi of a case, the authoritative premise for future judicial and juristic reasoning, we were told, was something that could (normally, at least)' be generalized into some articulate precept or precepts.' And under this theory of "law" these authoritative precepts, when properly formulated, interpreted and applied, were considered self-sufficient for deciding future cases.' Recently, however, many of our leading judges and legal educators have broken, to some degree at least, with this theory of the nature of the judicial process, admitting, sometimes frankly, that judges in deciding cases quite commonly and correctly utilize other elements than legal precepts.' Among the elements so * Dean of the College of Law, West Virginia University. 1As to the distinction between these three kinds of legal precepts and also as to legal "conceptions", see POUND, AN INTRODUCTION TO THE PHILOSOPHY or LAw (1922) 115 et seq. See also Pound, Law and the Science of Law in .Recent Theories (1934) 43 YALE L. J. 525. 2As to one class of cases in which the courts leave the major premise largely inarticulate, see Kales, "Due 1rocess" , the Inarticulate Major P"remise and the Adamson Act (1917) 26 YALE L. J. 519. Of. Frankfurter, Hours of Labor and Bealism in Constitutional Law (1916) 29 HARv. L. Rzv. 353. 3See, e. g., SALMOND, JURISPRUDENCE (7th ed. 1924) 201: "A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large." See also 18 HALSBuRY, LAWS or ENLAND (1911) 210: "It may be laid down as a general rule that that part alone of a decision of a court of law is binding upon courts of coordinate juris- diction and inferior courts which consists of the enunciation of the reason or principle upon which the question before the court has really been deter- mined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi.1" 'See Pound, Mechanical Jurisprudence (1908) 8 COL. L. REv. 005. 'Mr. Justice Cardozo and Dean Pound have played leading roles in this regard. CADozo, THE NATURE Or THE JUDICIAL PROCESS (1921), and Pound, The Theory of Judicial Decision (1923) 36 HA~y. L. REv. 641, 802, 940, are illustrative. Disseminated by The Research Repository @ WVU, 1934 1 West Virginia Law Review, Vol. 40, Iss. 3 [1934], Art. 5 WEST VIRGINIA LAW QUARTERLY 8 utilized is one which Dean Pound in a recent stimulating article has characterized as "the ideal element", i. e., the ideals, economic, politico-economic, ect., (e. g., laissez-faire; competition is the life of trade) which, though not formulatable into rules or other precepts, are frequently just as authoritative as precepts in shaping the progress of the law." In somewhat similar vein an eminent English jurist, in an enlightening article entitled "Eco- nomic Theories in English Case Law",' has rather recently ad- ventured into this "borderland", as he called it, "between eco- nomics and law" To the latter commentator, however, this field seems to be extra-legal territory. Quaere, though, is this a "borderland" between the legal and the extra-legal, or is it, rather, a newly recognized legal hinterland? Perhaps, as Dean Pound indicates in the leading article in this issue of the Quarterly," there may be something in our reports and in their settings, some elemental ore, as it were, which was rejected by our first legal "miners" but which must be worked over, if we are to get all the gold from our legal mines. Perhaps we must employ a new method in "mining", if we are to be able to dig straight through the "debris" in the reports and other materials and pick out all the "legal" elements that go into the making of our judicial decisions. In the more or less recent past, in legal writings at least, we have generally ignored the ideal element in the judicial technique, partly, perhaps, because this element is at times largely inarticulate, partly, no doubt, because we have generally thought of this element as "extra-legal". But in this age of realism we can no longer justify closing our eyes to any of the operative realities in the judicial process - to the authoritative part played by these ' Pound, The Ideal Relement in American Judicial Decision (1931) 45 HARv. L. REv. 136; also Pound, op. cit. supra n. 5; also Pound, A Comparison of Ideals of Law (1933) 47 HARv. L. REv. 1. 'See People ex rel. Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716 (1901): The ideal that that "government governs best which governs the least .... was an idea that was always present to the minds of the men who framed the Constitution, and it is proper for the courts to bear it in mind when expounding that instrument." "Parry, Economic Theories in English Case Law (1931) 47 L. Q. REV. 183. Speaking of the influence of such theories in English law, Mr. Parry says: "Of all doctrines it is the political and economic doctrine of laissez-faire that has made the deepest and most enduring marks upon our judge-made law .... For a century and a half the doctrine of laissez-faire has deter- mined the general attitude of the Bench towards the law." ' See Parry, supra n. 8, at p. 183. "Pound, New Possibilities of Old Materials of American Legal History (1934) 40 W. VA. L. Q. 205. https://researchrepository.wvu.edu/wvlr/vol40/iss3/5 2 Hardman: Public Utilities I. The Quest for a Concept PUBLIC UTILITIES ideals in the adjudication of cases. As to this Dean Pound says:' "The existence of such ideals as legal materials - as one authoritative form which legal materials may take, or as sources in Professor Gray's sense, i. e., authoritative raw materials of judicial decision - should be recognized. Their history should be traced as we trace the history of legal precepts. Their operation in action should be studied as we study the operation in action of legal precepts. In the past philosophical jurisprudence has been concerned with the ethical and philosophical bases of legal institutions and legal precepts and the principles and method of criticism of legal institutions and precepts with reference to those bases. To- day we should be employing philosophical method in jurisprudence to set off and criticize the ideal element in systems of developed law, to organize that element, as in the last century we organized the precept element, to give it definiteness, and to work out a critique no less assured and thorough than that to which the apparatus of rules and doctrines has long been subjected." This realistic view of the nature of the judicial process chal- lenges our consideration in connection with the question, what constitutes a public utility, or, more accurately perhaps, what businesses or business activities are subject to price-fixing control? In a former issue of the Quarterly" the writer discussed some aspects of the part played, or supposedly played, by a precept element in the judicial determination of this question. An at- tempt was then made to point out the futility of the long-continued judicial and juristic quest for a concept which would solve this ever-recurring problem. At that time there were some signs of the proverbial shadow that coming events cast before them, some signs that the long-continued dissents of Holmes, Brandeis and others were beginning to bear fruit. For several years, prior to 1930, the majority of the Supreme Court, applying a "jurisprudence of conceptions"," invalidated a series of price-fixing statutes on the theory that the business sought to be subjected to 'Pound, The Ideal Element in Anerican Judicial Decison, supra n. 6, at p. 148. "Hardman, Public Utilities. I. The Quest for a Concept (1931) 37 W. VA. L. Q. 250. 'As to what has been called a jurisprudence of conceptions and the part that it has played in American judicial decision see, e. g., Pound, op. cit., supra n. 4. Disseminated by The Research Repository @ WVU, 1934 3 West Virginia Law Review, Vol. 40, Iss. 3 [1934], Art. 5 WEST VIRGINIA LAW QUARTERLY this sort of governmental regulation did not fall in the category of businesses "affected with a public interest"," it being thought by a majority of the court that business was either "public" or "private", and whether it was the one or the other depended on whether it would fit into the concept of "publicness".

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